Common Position (EC) No 6/2002 of 23 October 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 Regulation of the European Parliament and of the Council amending Council Regulations (EEC) No 881/92 and (EEC) No 3118/93 for the purposes of establishing a driver attestation programme
Date: 2001-10-23
Institutions: Council of the European Union
Subjects: competition law, drivers, international transport, labour law, road transport, transport licence

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COMMON POSITION (EC) No 6/2002

adopted by the Council on 23 October 2001

with a view to adopting Regulation (EC) No .../2002 of the European Parliament and of the
Council of ... amending Council Regulations (EEC) No 881/92 and (EEC) No 3118/93 for the
purposes of establishing a driver attestation

(2002/C 9/03)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

(3)

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 71 thereof,

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

Having regard to the opinion of the Economic and Social
Committee (2),

Having consulted the Committee of the Regions,

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

Whereas:

(1)

(2)

Pursuant to Regulation (EEC) No 881/92 (4) the inter-
national carriage of goods by road is made conditional
i.e. a
on possession of a Community authorisation,
uniform document.

The absence of a similar uniform document certifying
the entitlement of drivers to drive the vehicles engaged
in such carriage subject to Community authorisation,
namely the international carriage covered by Regulation
(EEC) No 881/92 and the cabotage as defined and
provided for in Regulation (EEC) No 3118/93 (5) pre-
vents Member States from checking whether drivers
from non-member countries are lawfully employed or
are lawfully at the disposal of the haulier responsible for
the transport operation.

(1) OJ C 96 E, 27.3.2001, p. 207.
(2) OJ C 193, 10.7.2001, p. 28.
(3) Opinion of the European Parliament of 16 May 2001 (not yet
published in the Official Journal), Council Common Position of
23 October 2001 and Decision of the European Parliament of ...
(not yet published in the Official Journal).

(4) Council Regulation (EEC) No 881/92 of 26 March 1992 on access
to the market in the carriage of goods by road within the
Community to and from the territory of a Member State or
passing across the territory of one or more Member States (OJ
L 95, 9.4.1992, p. 1). Regulation as amended by the 1994 Act of
Accession.

(5) Council Regulation (EEC) No 3118/93 of 25 October 1993 laying
down the conditions under which non-resident carriers may
operate national road haulage services within a Member State (OJ
L 279, 12.11.1993, p. 1).

It is therefore appropriate to establish a driver attestation,
to limit the scope of this Regulation to drivers who
are nationals of non-member countries and to decide
subsequently, on the basis of an assessment by the
Commission, whether or not the Regulation should be
extended.

This Regulation leaves the legislation and statutory
provisions of Member States and the Community
governing movement, residence and access to an activity
as an employed person unaffected.

The fact that it is impossible to check whether drivers
outside the Member State of establishment of the haulier
are employed or supplied lawfully has led to a market
situation where drivers from non-member countries are
sometimes engaged unlawfully and solely for inter-
national carriage outside the haulier’s Member State of
establishment with an intent to breach the national
legislation of the Member State of establishment that
issued the haulier’s Community authorisation.

(4)

(5)

(6)

Such unlawfully employed drivers often work in precari-
ous conditions and are underpaid, which jeopardises
road safety.

(7)

Such a systematic breach of national legislation has led
to serious distortion of competition between hauliers
engaged in such practices and those resorting solely to
lawfully employed drivers.

(8)

The authorised bodies find it impossible to control
the working conditions of those unlawfully employed
drivers.

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(9)

A driver attestation cannot be adequately introduced by
the Member States and can therefore be better introduced
at Community level, in accordance with the principle of
subsidiarity as set out in Article 5 of the Treaty. In
accordance with the principle of proportionality as set
out in that Article, this Regulation does not go beyond
what is necessary for that purpose.

(10) Member States need time to have the new driver
attestation printed and distributed and this Regulation
shall therefore apply only after sufficient time has been
given to Member States to adopt the measures necessary
for its implementation.

(11)

It should be expressly confirmed that Member States
may require vehicles for which they issue a certified true
copy of the Community authorisation to be registered
in their territory.

(12) Regulation (EEC) No 881/92 should be amended accord-
ingly; Regulation (EEC) No 3118/93 should also be
amended to the effect that drivers who are nationals of
non-member countries should hold a driver attestation,

HAVE ADOPTED THIS REGULATION:

Article 1

non-member countries put at his disposal in
accordance with the conditions of employment
and of vocational training laid down in that
same Member State:

— by laws, regulations or administrative pro-

visions,

and, as appropriate,

— by collective agreements, in accordance
with the rules applicable in that Member
State.’

3.

In Article 4 the existing text shall become paragraph 1
and the following paragraph shall be added:

‘2. The driver attestation referred to in Article 3 shall
certify that in the context of transport by road covered
by Community authorisation, a driver who is a national
of a non-member country carrying out such transport is
employed in the haulier’s Member State of establishment
in accordance with the laws, regulations or administrative
provisions and, as appropriate, the collective agreements,
in accordance with the rules applicable in that Member
State, on the conditions of employment and of vocational
training of drivers to carry out road transport operations
in that State.’

4.

The following paragraph shall be added to Article 5:

‘5. A Community authorisation shall be issued for a
renewable period of five years.’

Regulation (EEC) No 881/92 is amended as follows:

5. Article 6 shall be replaced by the following:

1.

In Article 2 the following indent shall be added:

‘Article 6

‘— “driver” shall mean the person who drives a vehicle,
or who is carried in that vehicle in order to be
available for driving if necessary.’

2. Article 3 shall be amended as follows:

(a)

paragraph 1 shall be replaced by the following:

‘1.
International carriage shall be carried out sub-
ject to Community authorisation in conjunction
with a driver attestation if the driver is a national of
a non-member country’;

(b)

the following paragraph shall be added:

‘3. A driver attestation shall be issued by a Member
State, in accordance with Article 6, to any haulier
who:

— is the holder of a Community authorisation,

— in that Member State lawfully employs drivers
who are nationals of non-member countries or
lawfully uses drivers who are nationals of

1.
The driver attestation referred to in Article 3 shall
be issued by the competent authorities of the Member
State of establishment of the haulage undertaking.

2.
A driver attestation shall be issued by the Member
State at the request of the holder of the Community
authorisation for each driver who is a national of a non-
member country whom he lawfully employs or who is
lawfully put at his disposal
in accordance with the
laws, regulations or administrative provisions and, as
appropriate, the collective agreements,
in accordance
with the rules applicable in that Member State, on the
conditions of employment and of vocational training of
drivers applicable in that same Member State. Each driver
attestation shall certify that the driver named therein is
employed in accordance with the conditions laid down
in Article 4.

3.
The driver attestation shall conform to the model
set out in Annex III, which also lays down the conditions
governing its use. Member States shall take all steps
necessary to prevent the forgery of driver attestations.
They shall inform the Commission thereof.

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4.
The driver attestation shall belong to the haulier,
who puts it at the disposal of the driver designated therein
when that driver drives a vehicle using a Community
authorisation issued to that haulier. A certified true copy
of the driver attestation shall be kept at the haulier’s
premises. The driver attestation shall be produced when-
ever required by an authorised inspecting officer.

5.
A driver attestation shall be issued for a period to
be determined by the issuing Member State, subject to a
maximum validity of five years. The driver attestation
shall be valid only as long as the conditions under which
it was issued are satisfied. Member States shall take
appropriate measures to ensure that if those conditions
are no longer met the haulier returns the attestation
immediately to the issuing authorities.’

be determined having regard to the seriousness of the
infringement committed by the holder of the Community
authorisation and having regard to the total number of
certified true copies of that authorisation that he holds in
respect of international traffic.

4.
In the event of serious infringements or repeated
minor infringements regarding any misuse whatsoever of
driver attestations,
the
Member State of establishment of
the haulier who
committed such infringements shall impose appropriate
sanctions, such as:

the competent authorities of

— suspension of the issue of driver attestations,

6.

In Article 7 the existing text shall become paragraph 1
and the following paragraph shall be added:

— withdrawal of driver attestations,

‘2. The competent authorities of the Member State of
establishment shall regularly verify, by carrying out
checks each year, covering at least 20 % of the valid
attestations issued in that Member State, whether the
conditions referred to in Article 3(3) under which a driver
attestation has been issued are still satisfied.’

— making the issue of driver attestations subject to
additional conditions in order to prevent misuse,

— temporary or partial withdrawal of the certified true

copies of the Community authorisation.

7. Article 8 shall be replaced by the following:

‘Article 8

These sanctions shall be determined having regard to the
seriousness of the infringement committed by the holder
of the Community authorisation.’

1.
If the conditions laid down in Article 3(2) or those
referred to in Article 3(3) are not satisfied, the competent
authorities of the Member State of establishment shall
reject an application for the issue or renewal of a
Community authorisation or of a driver attestation, by
means of a decision which states the reasons therefor.

The competent authorities shall withdraw a Com-
2.
munity authorisation or a driver attestation where the
holder:

8.

In Article 9 the existing text shall become paragraph 1
and the following paragraph shall be added:

‘2. The Member States shall guarantee that the holder
of a Community authorisation can appeal against any
decision by the competent authorities of the Member
State of establishment to refuse or withdraw a driver
attestation or to make the issue of driver attestations
subject to additional conditions.’

9.

In Article 11(3) ‘in Article 8(3)’ shall be replaced by ‘in
Article 8(3) and (4)’.

— no longer satisfies the conditions laid down in
Article 3(2) or those referred to in Article 3(3) or,

10. The following Article shall be inserted:

— has supplied incorrect information in relation to
the data required for the issue of a Community
authorisation or of a driver attestation.

‘Article 11a

In the event of serious infringements or repeated
3.
minor infringements of carriage regulations, the com-
petent authorities of the Member State of establishment
of the haulier who has committed such infringements
inter alia, temporarily or partially withdraw the
may,
certified true copies of the Community authorisation and
may withdraw driver attestations. These sanctions shall

The Commission shall examine the consequences of
restricting the obligation to hold a driver attestation to
drivers who are nationals of non-member countries and
shall, should there be sufficient justification for doing so,
submit a proposal for the amendment of this Regulation.’

11. Annex III, as set out in the Annex to this Regulation, shall

be added.

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Article 2

Article 1 of Regulation (EEC) No 3118/93 shall be amended as
follows:

1.

Paragraph 1 shall be replaced by the following:

‘1. Any road haulage carrier for hire or reward who is a
holder of the Community authorisation provided for in
Regulation (EEC) No 881/92 and whose driver, if he is a
national of a non-member country, holds a driver attest-
ation in accordance with the conditions laid down in the
said Regulation, shall be entitled, under the conditions
laid down in this Regulation, to operate on a temporary
basis national road haulage services for hire or reward in
another Member State, hereinafter referred to respectively
as “cabotage” and as the “host Member State”, without
having a registered office or other establishment therein.’

2.

The following subparagraph shall be added to para-
graph 2:

‘If the driver is a national of a non-member country, he
must hold a driver attestation in accordance with the
conditions laid down in Regulation (EEC) No 881/92.’

Article 3

Member States shall communicate to the Commission the
measures they take to implement this Regulation.

Article 4

This Regulation shall enter into force on the day of
publication in the Official Journal of the European Communities.

its

It shall apply from ... (*).

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at ...,

For the European Parliament

The President

For the Council

The President

(*) One year after the date of entry into force of this Regulation.

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ANNEX

‘ANNEX III

EUROPEAN COMMUNITY

(a)

(colour pink — DIN A 4)

(first page of the attestation)

(text in (one of) the official language(s) of the Member State issuing the attestation)

Distinguishing sign of the Member State (1) issuing
the attestation

Name of the competent authority or body

DRIVER ATTESTATION No ...

for the carriage of goods by road for hire or reward under a Community authorisation

(Regulation (EEC) No 881/92 as amended by Regulation (EC) No .../... of ...)

This attestation certifies that on the basis of the documents presented by (2):

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

the following driver:

Name and forename . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Date and place of birth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nationality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Type and reference No of proof of identity paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Date of issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Place of issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Driving licence No . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Date of issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Place of issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(1) The distinguishing signs of the Member States are: (A) Austria, (B) Belgium, (DK) Denmark, (D) Germany, (GR) Greece, (E) Spain,
(F) France, (FIN) Finland, (IRL) Ireland, (I) Italy, (L) Luxembourg, (NL) Netherlands, (P) Portugal, (S) Sweden, (UK) United Kingdom.

(2) Name or business name and full address of the haulier.

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Social security No . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

is employed, in accordance with the laws, regulations or administrative provisions and, as appropriate, the collective
agreements, in accordance with the rules applicable in the following Member State, on the conditions of employment
and of vocational training of drivers applicable in that Member State to carry out road transport operations in that
State (1):

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Particular remarks: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

This attestation shall be valid from . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Issued in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)

(1) Name of the haulier’s Member State of establishment.
(2) Signature and stamp of the issuing competent authority or body.

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(b)

(second page of the attestation)

(text in (one of) the official language(s) of the Member State issuing the attestation)

GENERAL PROVISIONS

This attestation is issued under Council Regulation (EEC) No 881/92 of 26 March 1992, as amended, on access to
the market in the carriage of goods by road within the Community to or from the territory of a Member State or
passing across the territory of one or more Member States.

It certifies that the driver named therein is employed, in accordance with the laws, regulations or administrative
provisions and, as appropriate, the collective agreements, in accordance with the rules applicable in the Member
State mentioned on the attestation, on the conditions of employment and of vocational training of drivers applicable
in that same Member State to carry out road transport operations in that State.

The driver attestation shall belong to the haulier, who puts it at the disposal of the driver designated therein when
that driver drives a vehicle (1) engaged in carriage using a Community authorisation issued to that haulier. The driver
attestation is not transferable. The driver attestation shall be valid only as long as the conditions under which it was
issued are still satisfied and must be returned immediately by the haulier to the issuing authorities if these conditions
are no longer met.

It may be withdrawn by the competent authority of the Member State which issued it, in particular where the haulier
has:

— not complied with all the conditions for using the attestation,

— supplied incorrect information with regard to the data needed for the issue or extension of the attestation.

A certified true copy of the attestation must be kept by the haulage undertaking. The original attestation must be
kept in the vehicle and must be produced by the driver whenever required by an authorised inspecting officer.’

(1) ‘“Vehicle” means a motor vehicle registered in a Member State or a coupled combination of vehicles, the motor vehicle of which

at least is registered in a Member State, used exclusively for the carriage of goods.’

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STATEMENT OF THE COUNCIL’S REASONS

I.

INTRODUCTION

On 27 November 2000, the Commission submitted a proposal for a Regulation amending Council
Regulation (EEC) No 881/92 on access to the market in the carriage of goods by road within the
Community to and from the territory of a Member State or passing across the territory of one or
more Member States, with the aim of introducing a uniform driver attestation (1). The proposal is
based on Article 71 of the EC Treaty.

The opinions of the European Parliament and the Economic and Social Committee on the
Commission proposal were delivered on 16 May 2001 and 25 April 2001 (2) respectively.

In response to the Council’s request for consultation of 7 March 2001, the Committee of the Regions
informed the Council by letter of 19 June 2001 that it had decided not to give an opinion.

In the light of the European Parliament’s opinion, on 5 July 2001 the Commission forwarded an
amended proposal to the Council.

On 23 October 2001, the Council adopted a Common Position in accordance with Article 251 of
the EC Treaty.

II.

AIMS OF THE PROPOSAL

The purpose of the amended Commission proposal is to establish a uniform Community document,
namely the driver attestation, in order to enable national control bodies to check properly the
employment status of drivers engaged in the international carriage of goods throughout the
Community subject to Community authorisation. The Commission aims to tackle the problem
posed by the unlawful employment of a growing number of drivers by certain Community
undertakings in recent years. The working conditions of these drivers are often poor, which
represents a threat to road safety, and such a systematic breach of national legislation creates serious
distortions of competition.

The scope of the proposal in the first two years of application is restricted to drivers who are
nationals of non-member countries, so as to ease the administrative burden involved in introducing
the attestation. The Regulation would apply to such drivers six months after its entry into force.
However, 30 months after its entry into force the Regulation would cover all drivers, regardless of
their nationality.

III. ANALYSIS OF THE COMMON POSITION

1.

The Council shared the Commission’s view that the absence of a similar uniform document
certifying that the driver of a vehicle engaged in the carriage of goods subject to Community
authorisation is legally employed in the territory of a Member State creates major control
problems for Member States and encourages recourse to the unlawful employment of drivers.

(1) OJ C 96 E, 27.3.2001, p. 207.
(2) OJ C 193, 10.7.2001, p. 28.

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However, the Council restricted the scope of the Regulation to drivers who are nationals of
non-member countries. Its basis for doing so was the survey carried out by the Commission in
1999, which revealed that drivers employed unlawfully to drive Community vehicles in
international carriage operations often come from non-member countries and often work in
poor conditions and are underpaid.

Compared to the Commission’s amended proposal, the Council’s Common Position therefore
provides that:

— only drivers who are nationals of non-member countries must hold a driver attestation
(see in particular Article 1(2) relating to the new paragraphs 1 and 3 of Article 3 of
Regulation (EEC) No 881/92),

— it will be decided subsequently, on the basis of an assessment by the Commission, whether
or not the Regulation should be extended (recital 3). The Commission will examine the
consequences of restriction of the scope and, if there is sufficient justification for doing
so, will submit a proposal for amendment (Article 1(10), relating to the new Article 11a).

Moreover, the Council does not believe that to require only drivers who are nationals of non-
member countries to hold the attestation in question creates any discrimination between them
and drivers who are Community nationals such as would be incompatible with the Europe
Agreements concluded between the Community and certain central and east European
countries. The Council’s Common Position does not concern working conditions; its aim is to
ensure that access to employment has been legal, i.e. in compliance with the relevant legislation.

The Council also considered that a narrower scope, excluding Community drivers, would ease
the administrative burden on Member States.

Moreover, if the scope of the Common Position also extended to drivers who were Community
nationals, the question of the arrangements to be applied to self-employed drivers would arise.

The amended Commission proposal does not subject all self-employed drivers to the same
arrangements. It includes in its scope only those self-employed drivers who do not, as natural
persons, hold the Community authorisation. It provides that:

— if the holder of the authorisation and the driver are the same natural person, the
authorisation is sufficient, as the driver is a self-employed driver in the true sense of the
word (owner of the vehicle), and thus does not need an attestation,

— if the holder of the authorisation is a legal person, the driver should have the attestation,
even if he is the sole owner of the undertaking, which may bear a name other than his
own (one-man undertaking, private or public limited liability company, etc.).

Before deciding that the scope of the Regulation should be restricted as described above, the
Council examined the possibility of authorising undertakings to draw up attestations
themselves, in order to ease the administrative burden on the Member States, allowing them to
issue the necessary attestations without delay whenever the need arose. However, the Council
decided against that option, as it would be difficult, where the holder of the authorisation and
the driver were actually one and the same person (the holder of the authorisation was a legal
person of which the administrator, the manager, etc. was the sole driver), to allow the
undertaking to draw up the attestation, since the person could not self-certify himself.

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2.

In addition, compared to the amended proposal the Council’s Common Position provides for:

— the introduction of a stricter control procedure, namely a yearly check of at least 20 % of
an undertaking’s attestations (Article 1(6), relating to the new Article 7(2) of Regulation
(EEC) No 881/92),

— an amendment relating to cabotage. It is reflected in the title, recital 2 and Article 2. The
Common Position amends Regulation (EEC) No 3118/93 (1), making it compulsory for
drivers who are nationals of non-member countries to hold a driver attestation in order
to carry out cabotage operations as defined and provided for in Regulation (EEC)
No 3118/93.

IV. AMENDMENTS OF THE EUROPEAN PARLIAMENT

Of the seven amendments proposed by the European Parliament, the Council adopted only
amendment 7.

The Council did not adopt amendments 1 to 5 and amendment 6, second part, because of the
restriction of the Common Position’s scope to drivers from non-member countries. With regard to
amendment 6, first part, which applies the Regulation to drivers who are not nationals of a
Member State from the date of its entry into force, the Council preferred, for practical reasons
connected with preparation of the measures required for its implementation, the Regulation to apply
one year after its entry into force.

(1) Council Regulation (EEC) No 3118/93 of 25 October 1993 laying down the conditions under which non-resident

carriers may operate national road haulage services within a Member State (OJ L 279, 12.11.1993, p. 1).