Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council on minimum conditions for the implementation of Directive 2002/15/EC and Council Regulations (EEC) Nos 3820/85 and 3821/85 concerning social legislation relating to road transport activities (COM(2003) 628 final – 2003/0255 (COD))
Date: 2004-06-03
Institutions: European Economic and Social Committee
Subjects: European social policy, driving period, labour inspectorate, labour law, occupational safety, police checks, road transport, speed control, transport company

28.9.2004

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Official Journal of the European Union

C 241/65

Opinion of the European Economic and Social Committee on the ‘Proposal for a Directive of the
European Parliament and of the Council on minimum conditions for the implementation of
Directive 2002/15/EC and Council Regulations (EEC) Nos 3820/85 and 3821/85 concerning social
legislation relating to road transport activities’

(COM(2003) 628 final – 2003/0255 (COD))

(2004/C 241/17)

On 11 December 2003 the Council of the European Union decided to consult the European Economic and
Social Committee, under Article 71 of the Treaty establishing the European Community, on the ‘Proposal
for a Directive of the European Parliament and of the Council on minimum conditions for the implementa-
tion of Directive 2002/15/EC and Council Regulations (EEC) Nos 3820/85 and 3821/85 concerning social
legislation relating to road transport activities’.

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 10 May 2004. The rapporteur was
Mr Simons.

At its 409th plenary session (meeting of 3 June 2004), the European Economic and Social Committee
adopted the following opinion by 136 votes to one with five abstentions:

1. The proposal's objectives and content

The aim of the proposal is to improve the frequency,
1.1
quality and harmonisation of checks on compliance with social
legislation in road transport, thereby promoting compliance.
Respect for these rules furthers traffic safety and fair competi-
tion in road transport and also benefits the health and safety of
drivers.

1.2
The proposal states that the number of checks is to be
raised so as to cover at least three percent of the days worked
by drivers. It also makes provision for a procedure to increase
this minimum percentage still further in the future. At least 30
percent of these checks must be carried out at the roadside and
at least 50 percent on company premises.

1.3
The following measures are to enhance the quality of
checks and ensure that checks are harmonised: the content of
the checks is to be the subject of Community rules; better
training is to be provided for the inspecting officers; checks are
to be aligned at international level more frequently; the checks
are to be coordinated within each Member State; information is
to be exchanged between countries; the classification of risks
and of the seriousness of offences is to be harmonised; and a
committee is to be set up by the Commission to provide for a
uniform interpretation of the rules and promote the quality
and harmonisation of the checks.

2. General comments

2.1
The Committee regards good checks as a vital link in a
chain starting with the adoption of good legislation and ending
with effective penalties. Since social legislation in road trans-
port is in a state of turmoil at the moment, with both the rules
on driving and rest periods and those on recording equipment
(tachograph) being affected, the Committee expressly welcomes
the moves to revise the rules applicable to the checks.

2.2
The Committee fully endorses the aims of the Commis-
sion's proposal. This applies to both the better enforcement
sought and the harmonisation of the rules. The Committee
would point out that this harmonisation requires an unambig-
uous interpretation of
the rules and agreements between
Member States regarding the seriousness of offences.

that at

least 3 percent of

Since the frequency of checks currently varies consider-
2.3
the Committee
ably from one Member State to another,
supports the proposal
the days
worked by drivers should be checked in every Member State.
The Committee is aware that this minimum requirement can
place a serious burden on the administrative machinery in a
large number of Member States, and especially the new
that
Member States. The Committee would also point out
according to the Commission's biennial reports on the checks
and their findings, it took many of the current Member States a
long time to respect
the current minimum requirements
governing checks. It therefore thinks that compliance with the
new provision must go hand-in-hand with further demands on
the Member States regarding the capabilities of their machinery
for carrying out checks, inter alia in order to avert the danger
mentioned below in point 2.4. The Committee welcomes in
this connection the fitting of digital
tachographs, which it
thinks will help in no small measure to satisfy the proposed
provision. However, since it would seem to be virtually impos-
sible for the equipment to be introduced across-the-board by
the 5 August deadline stipulated in the relevant legislation (1)
the Committee would urge the European Commission not to
delay in proposing clear deferment rules so as to avoid unjust
checks and differences of interpretation between countries and
so that the industry knows where it stands. There is a letter
from Commissioner Loyola de Palacio to the Member States on
this matter which is clear in itself but which is inadequate from
a legal point of view.

(1) Regulation 2135/98.

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that

2.4
The Committee agrees with the Commission that there
should be more checks on company premises than at roadsides.
Checks on company premises can cover more points, and they
can provide a picture of the extent to which a company as a
whole abides by the rules. On the other hand, the Committee
fears
the obligation to check many driver days on
company premises will result in inspecting officers preferring
to visit large companies, because within a given period they
can check more driver days there than in a small or one-man
company. This being so, the Committee considers the proposed
50 percent figure to be too high to begin with. Unless Member
States
regarding their
supplementary provisions
minimum vehicle-checking capabilities, 40 percent would be a
more appropriate figure.

approve

for

the

same

is not

2.5
The Committee has serious doubts about the effective-
ness of the proposed roadside checks on certain working time
provisions. Directive 2002/15/EC allows derogations from the
maximum weekly working time, the definition of working time
or time on call can vary from country to country, and ‘night-
time’
everybody everywhere. The
Committee therefore recommends that roadside checks on
working time not be included in Annex I, Part A. Instead, the
European Commission or the committee proposed in Article
13 of the directive can be given the task of carrying out a
these checks. The
study on the benefit and feasibility of
Committee also thinks it would make sense for roadside checks
on non-EU drivers at the wheel of EU-registered vehicles to
include checking whether they are in possession of the driver
attestation required under Regulation 881/92 (amended).

The Committee endorses the importance,

2.6
from the
competition point of view, of neutral checks and supports the
provisions in the Commission proposal which seeks to secure
this neutrality.

The Committee thinks that

2.7
figure for
checks can provide a good picture of the extent to which trans-
port companies generally keep to the rules, thereby allowing
the black sheep to be targeted for tracking down and prosecu-
tion.

the 3 percent

the provisions

The Committee welcomes

2.8
in the
Commission proposal which address matters of great impor-
tance for international drivers and international road transport
companies, i.e. well-trained inspectors, uniform interpretation
infringements
of
according to their severity, and the possibility in every country
of having a body to turn to in the event of problems.

rules, harmonised classification of

the

3. Specific comments

3.1 Article 2(1)

Further to the general comment about roadside checks on
working time provisions, the Committee notes that the times

worked by mobile workers who are not drivers are frequently
not recorded on a tachograph and that they do not necessarily
tally with the times worked by drivers.

3.2 Article 9(3)

The Committee supports the basic idea that a system of suitable
fines — which it assumes will be EU-wide — takes away the
advantage enjoyed by a link in the transport chain as a result
of an infringement. In view of the complications of such a
system, especially in international
transport, the Committee
nevertheless thinks that it is often the driver or haulier who
must pay the fine even when the advantage has been enjoyed
by another party. Considerable legal problems are also raised in
the Committee's view: by exceeding the driving time a driver
may be able to reach home instead of taking a daily rest period
en route close to home or may be able to take a ferry instead
of having to wait hours for the next one. In the former case the
only one to profit is the driver, but in the latter all links in the
transport chain profit. The legal basis for penalising the shipper
in the latter case is, however, extremely narrow in the Commit-
tee's view. The Committee foresees major objections and the
possible distortion of competition if Member States are able to
apply this basic idea as they see fit. It therefore recommends
that agreement be reached on more detailed Community rules
stipulating the situations in which penalties can be imposed on
third parties, harmonising these penalties and standardising the
proof required for the imposition of such penalties.

3.3 Article 9(4)

The Committee has three objections here:

— The daily driving time can easily be exceeded by more than
20 % because of circumstances beyond one's control such
as queues, road works, accidents, etc. The 20 % margin
must apply in cases where the limit is ‘repeatedly’ exceeded.

— Daily and weekly rest periods are defined in the Commis-
sion proposal as being of a certain minimum duration.
Since these are definitions, a margin is not possible. The
Commission is not consistent on this matter and should
specify the minimum duration of a rest period in a separate
article, as in the current Regulation 3820/85.

— Article 12 of Regulation 3820/85 permits the rules to be
bent in special circumstances. Regulation 2135/98 (digital
tachograph) offers limited possibilities for recording such
cases. The proposed directive must,
in the Committee's
view, take explicit account of this.

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3.4 Article 16

the digital

Further to the general comment regarding inadequate vehicle-
checking capabilities and many Member States' dependence on
the fitting of digital tachographs in most vehicles in order to
ensure that the new minimum number of checks are carried
out, and given the many uncertainties still surrounding the date
of
the Committee
proposes that the 3 percent minimum percentage listed in the
proposal should not come into force until two years after the
introduction of
the
Committee endorses the proposed date (1 January 2006) so
that the Member States can prepare for harmonisation and
cooperation.

tachograph. For

introduction,

tachograph's

the digital

the rest,

3.5
The Committee calls on the Commission to involve the
social partners at European level in the work of the Committee
which it proposes setting up.

4. Summary and conclusions

The Committee fully endorses the aims of the Commis-
4.1
sion proposal. It regards good checks as a vital
link in the
chain starting with the adoption of good legislation and ending
with effective penalties. The Committee thinks
the
proposal is acceptable for the most part.

that

4.2
must be taken of

However, the Committee considers that better account
the current capacity of Member States'

Brussels, 3 June 2004.

machinery for carrying out checks and of the limits imposed
thereon. Therefore it recommends that the minimum percen-
tage of working days checked on company premises be set at
40 percent for a transitional period.

4.3
The Committee welcomes the Commission's proposal
that checks be carried out on 3 percent of the days worked.
This can provide a good picture of the extent to which trans-
port companies generally keep to the rules, thereby allowing
the black sheep to be targeted for tracking down and prosecu-
tion. A further increase in the percentage of days checked will
then no longer be necessary.

The Committee supports the basic idea of a system of
4.4
suitable fines which takes away the advantage enjoyed by a link
in the transport chain as a result of an infringement. These
fines — laid down EU-wide — should provide an adequate
legal basis for punishing others apart from the driver and/or
haulier.

4.5
Given the many national and international derogations
from the working time provisions, the Committee recommends
that roadside checks on working time not be included in
Annex 1, Part A.

The Committee thinks that it makes sense for roadside checks
to include a check on whether non-EU drivers at the wheel of
EU-registered vehicles are in possession of the requisite driver
attestation.

The President

of the European Economic and Social Committee

Roger BRIESCH