Common Position (EC) No 12/2005 of 9 December 2004 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 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98
Date: 2004-12-09
Institutions: Council of the European Union
Subjects: European social policy, driving period, measuring equipment, occupational safety, rest period, road safety, road transport, working conditions

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COMMON POSITION (EC) No 12/2005

adopted by the Council on 9 December 2004

with a view to adopting Regulation (EC) No.../2005 of the European Parliament and of the Council
of … on the harmonisation of certain social legislation relating to road transport and amending
Council Regulations (EEC) No 3821/85 and (EC) No 2135/98

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO-
PEAN UNION,

(4)

(2005/C 63 E/02)

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

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

After consulting the Committee of the Regions,

Acting in accordance with the procedure laid down in Article
251 of the Treaty (2),

Whereas:

(1)

(2)

(3)

In the field of road transport, Council Regulation (EEC)
No 3820/85 of 20 December 1985 on the harmonisa-
tion of certain social legislation relating to road trans-
port (3) sought to harmonise the conditions of competi-
tion between methods of
inland transport, especially
with regard to the road sector, and to improve working
conditions and road safety. Progress in these areas
should be safeguarded and extended.

Directive 2002/15/EC of the European Parliament and of
the Council of 11 March 2002 on the organisation of
the working time of persons performing mobile road
transport activities (4) requires Member States to adopt
measures which limit
the maximum weekly working
time of mobile workers.

Difficulties have been experienced in interpreting,
applying, enforcing and monitoring certain provisions of
Regulation (EEC) No 3820/85 relating to driving time,
break and rest period rules for drivers engaged in
national and international road transport within the
Community in a uniform manner in all Member States,
because of the broad terms in which they are drafted.

(1) OJ C 221, 17.9.2002, p. 19.
(2) Opinion of the European Parliament of 14 January 2003 (OJ C 38
E, 12.2.2004, p. 152), Council Common Position of 9 December
2004 and Position of
the European Parliament of … (not yet
published in the Official Journal).

(3) OJ J 370, 31.12.1985, p. 1. Regulation as amended by Directive
2003/59/EC of the European Parliament and of the Council (OJ L
226, 10.9.2003, p. 4).
(4) OJ L 80, 23.3.2002, p. 35.

Effective and uniform enforcement of those provisions is
desirable if their objectives are to be achieved and the
application of the rules is not to be brought into disre-
pute. Therefore, a clearer and simpler set of rules is
needed, which will be more easily understood,
inter-
preted and applied by the road transport industry and
the enforcement agencies.

Measures provided for
in this Regulation regarding
working conditions should not prejudice the right of the
two sides of
industry to lay down, by collective
bargaining or otherwise, provisions more favourable to
workers.

It is desirable to define clearly the scope of this Regu-
lation by specifying the main categories of vehicle
included.

This Regulation should apply to carriage by road under-
taken either exclusively within the Community or
between the Community, Switzerland and the countries
party to the European Economic Area agreement.

The provisions of the European Agreement concerning
the Work of Crews of Vehicles engaged in International
Road Transport of 1 July 1970 (AETR), as amended,
should continue to apply to the carriage by road of
goods and passengers by vehicles registered in any
Member State or any country which is a contracting
party to the AETR, for the whole of the journey where
that journey is between the Community and a third
country other than Switzerland and the countries party
to the European Economic Area agreement or through
such a country.

In the case of carriage by road using vehicles registered
in a third country which is not a contracting party to
the AETR, the provisions of the AETR should apply to
that part of the journey effected within the Community
or within countries which are contracting parties to the
AETR agreement.

(5)

(6)

(7)

(8)

(9)

(10)

Since the subject matter of the AETR Agreement falls
the power
within the scope of
to
negotiate and conclude the Agreement
lies with the
Community.

this Regulation,

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(11)

If an amendment to the internal Community rules in the
field in question necessitates a corresponding amend-
ment to the AETR, Member States should act together to
bring about such an amendment to the AETR as soon as
possible,
in accordance with the procedure laid down
therein.

tive weeks and the provisions which prescribe that
under no circumstances should a daily rest period be less
than an uninterrupted period of nine hours. Since those
provisions guarantee adequate rest, and also taking into
account experience with enforcement practices during
the past years, a system of compensation for reduced
daily rest periods is no longer necessary.

(12)

The list of exemptions should be updated to reflect
developments in the road transport sector over the past
nineteen years.

(18) Many road transport operations within the Community
involve transport by ferry or by rail for part of the
journey. Clear, appropriate provisions regarding daily
rest periods and breaks should therefore be laid down
for such operations.

Full definitions of all key terms should be given in order
to render interpretation easier and ensure that this Regu-
lation is applied in a uniform manner. The definition of
‘week’ provided in this Regulation should not prevent
drivers from starting work on any day of the week.

(19)

(13)

(14)

(15)

(16)

(17)

To guarantee effective enforcement,
it is essential that
the appropriate authorities, when carrying out roadside
checks, and after a transitional period, should be able to
ascertain that driving times and rest periods have been
properly observed on the day of the check and the
preceding 28 days.

The basic rules on driving time need to be clarified and
simplified to allow effective and uniform enforcement by
means of the digital tachograph as set out in Council
Regulation (EEC) No 3821/85 of 20 December 1985 on
recording equipment in road transport (1) and this Regu-
lation.
through the standing committee,
Member State enforcement authorities should strive to
reach a common understanding of the implementation
of this Regulation.

In addition,

It has proved possible under the rules of Regulation
(EEC) No 3820/85 to schedule daily driving periods and
breaks to enable a driver to drive for too long without a
full break, leading to reduced road safety and a deteriora-
tion in the driver's working conditions. It is therefore
appropriate to ensure that split breaks are so ordered as
to prevent abuse.

This Regulation aims to improve social conditions for
employees which are covered by it, as well as to
improve general road safety. It does so mainly by means
of the provisions pertaining to maximum driving times
per day, per week and per period of two consecutive
weeks, the provision which obliges drivers to take a
regular weekly rest period at least once per two consecu-

(1) OJ L 370, 31.12.1985, p. 8. Regulation last amended by Commis-

sion Regulation (EC) No 432/2004 (OJ L 71, 10.3.2004, p. 3).

In view of the increase in the cross-border carriage of
goods and passengers, it is desirable, in the interests of
for roadside
road safety and enhanced enforcement,
checks and checks at the premises of undertakings to
cover driving times, rest periods and breaks undertaken
within other Member States or third countries and deter-
mine whether the relevant rules have been fully and
properly observed.

(20)

Liability of transport undertakings should apply at least
to transport undertakings
that are legal or natural
persons, and should not exclude proceedings against
natural persons who are perpetrators, or instigators of,
or accessories to, infringements of this Regulation.

(21)

It is necessary for drivers working for several transport
undertakings to supply each of
them with adequate
information to enable it to fulfil its responsibilities under
this Regulation.

(22)

In order to promote social progress and improve road
safety, each Member State should retain the right to
adopt certain appropriate measures.

(23) National derogations should reflect changes in the road
transport sector and be restricted to those elements not
now subject to competitive pressures.

(24)

The Member States should lay down rules for vehicles
used for the carriage of passengers on regular services
where the route covered does not exceed 50 km. Those
rules should provide adequate protection in terms of
permitted driving times and mandatory breaks and rest
periods.

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(25)

It is desirable, in the interests of effective enforcement,
that all regular national and international passenger
transport services should be checked using the standard
recording device.

(32)

For reasons of clarity and rationalisation, Regulation
(EEC) No 3820/85 should be repealed and replaced by
this Regulation,

(26)

(27)

(28)

(29)

(30)

The Member States should lay down rules on penalties
applicable to infringements of
this Regulation and
ensure that they are implemented. Those penalties must
be effective, proportionate, dissuasive and non-discrimi-
natory. The possibility of immobilising the vehicle where
infringements are detected should be also
serious
included within the common range of measures open to
Member States. The provisions contained in this Regu-
lation pertaining to penalties or proceedings should not
affect the national rules concerning the burden of proof.

It is desirable in the interests of clear and effective enfor-
cement to ensure uniform provisions on the liability of
transport undertakings and drivers for infringements of
this Regulation. This liability may result in penal, civil or
administrative penalties as may be the case in the
Member States.

Since the objective of this Regulation, namely the estab-
lishment of clear, common rules on driving times,
breaks and rest periods cannot be sufficiently achieved
by the Member States and can therefore, by reason of
the need for coordinated 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 the Treaty. In accordance with the
principle of proportionality, as set out in that Article,
this Regulation does not go beyond what is necessary in
order to achieve that objective.

The measures necessary for the implementation of this
Regulation should be adopted in accordance with
Council Decision 1999/468/EC of 28 June 1999 laying
down the procedures for the exercise of implementing
powers conferred on the Commission (1).

Regulation (EEC) No 3821/85 should be amended to
clarify specific obligations on transport undertakings and
drivers as well as to promote legal certainty and to facili-
tate enforcement of driving time and rest period limits
during roadside checks.

(31)

Regulation (EEC) No 3821/85 should also be amended
to ensure legal certainty as regards the new dates for the
introduction of the digital tachograph and for the avail-
ability of driver cards.

(1) OJ L 184, 17.7.1999, p. 23.

HAVE ADOPTED THIS REGULATION:

CHAPTER I

Introductory provisions

Article 1

This Regulation lays down rules on driving times, breaks and
rest periods for drivers engaged in the carriage of goods and
passengers by road in order to harmonise the conditions of
competition between modes of inland transport, especially with
regard to the road sector, and to improve working conditions
and road safety. This Regulation also aims
to promote
improved monitoring and enforcement practices by Member
States and improved working practices in the road transport
industry.

Article 2

1.

This Regulation shall apply to the carriage by road:

(a) of goods where the permissible maximum weight of the
including any trailer, or semi-trailer, exceeds 3,5

vehicle,
tonnes, or

(b) of passengers by vehicles which are constructed or perma-
nently adapted for carrying more than nine persons
including the driver, and are intended for that purpose.

This Regulation shall apply, irrespective of the country of

2.
registration of the vehicle, to carriage by road undertaken:

(a) exclusively within the Community; and

(b) between the Community, Switzerland and the countries

party to the European Economic Area agreement.

3.
The European Agreement concerning the Work of Crews
of Vehicles engaged in International Road Transport (‘AETR’)
shall apply,
instead of this Regulation, to international road
transport operations undertaken in part outside the areas
mentioned in paragraph 2, to:

(a) vehicles registered in the Community or in countries which
for the

are contracting parties to the AETR agreement,
whole journey;

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(b) vehicles registered in a third country which is not a
contracting party to the AETR agreement, only for the part
of the journey on the territory of the Community or of
countries which are contracting parties to the AETR agree-
ment.

on rails, and normally used for carrying passengers or
goods;

— ‘tractor’: any self-propelled vehicle circulating on the
road, other than a vehicle permanently running on
rails, and specially designed to pull, push or move trai-
lers, semi-trailers, implements or machines;

Article 3

This Regulation shall not apply to carriage by road by:

vehicle or tractor;

— ‘trailer’: any vehicle designed to be coupled to a motor

(a) vehicles used for the carriage of passengers on regular
services where the route covered by the service in question
does not exceed 50 kilometres;

(b) vehicles with a maximum authorised speed not exceeding

30 kilometres per hour;

(c) vehicles owned or hired without a driver by the armed
services, civil defence, fire services, and forces responsible
for maintaining public order when the carriage is under-
taken as a consequence of
the tasks assigned to these
services and is under their control;

(d) vehicles used in emergencies or rescue operations;

(e) specialised vehicles used for medical purposes;

(f) specialised breakdown vehicles operating within a 100 km

radius of their base;

(g) vehicles undergoing road tests for technical development,
repair or maintenance purposes, and new or rebuilt vehi-
cles which have not yet been put into service;

(h) vehicles or combinations of vehicles with a maximum
permissible weight not exceeding 7,5 tonnes used for the
non-commercial carriage of goods;

(i) commercial vehicles, which have a historic status according
to the legislation of the Member State in which they are
being driven and which are used for the non-commercial
carriage of passengers or goods.

Article 4

For the purposes of this Regulation the following definitions
shall apply:

(a) ‘carriage by road’ means any journey made entirely or in
part on roads open to the public by a vehicle, whether
laden or not, used for the carriage of passengers or goods;

(b) ‘vehicle’ means a motor vehicle, tractor, trailer or semi-
these vehicles, defined as

trailer or a combination of
follows:

— ‘semi-trailer’: a trailer without a front axle coupled in
such a way that a substantial part of its weight and of
the weight of its load is borne by the tractor or motor
vehicle;

(c) ‘driver’ means any person who drives the vehicle even for
a short period, or who is carried in a vehicle in order to be
available for driving if necessary;

(d) ‘break’ means any period during which a driver may not
carry out any driving or any other work and which is used
exclusively for recuperation;

(e) ‘other work’ means all activities which are defined as
working time in Article 3(a) of Directive 2002/15/EC
‘driving’, and also any work for the same or
except
another employer, within or outside of
the transport
sector;

(f) ‘rest ’ means any uninterrupted period during which the

driver may freely dispose of his time;

(g) ‘daily rest period’ means the daily period during which the
driver may freely dispose of his time and covers a ‘regular
daily rest period’ or a ‘reduced daily rest period’:

— ‘regular daily rest period’ means any uninterrupted
period of rest of at least 11 hours. Alternatively, this
regular daily rest period may be taken in two periods,
the first of which must be an uninterrupted period of
at
least 3 hours and the second an uninterrupted
period of at least 9 hours;

— ‘reduced daily rest period’ means any uninterrupted
period of rest of at least 9 hours but less than 11
hours;

(h) ‘weekly rest period’ means an uninterrupted period of rest
during which the driver may freely dispose of his time and
covers a ‘regular weekly rest period’ or a ‘reduced weekly
rest period’:

— ‘motor vehicle’: any self-propelled vehicle circulating
on the road, other than a vehicle permanently running

— ‘regular weekly rest period’ means any uninterrupted

period of rest of at least 45 hours;

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— ‘reduced weekly rest period’ means any uninterrupted
period of rest of
less than 45 hours, which may,
subject to the conditions in Article 8(6), be shortened
to a minimum of 24 consecutive hours;

CHAPTER II

Crews, driving times, breaks and rest periods

(i) ‘a week’ means the period of time between 00.00 on

Monday and 24.00 on Sunday;

(j) ‘daily driving time’ means the total accumulated driving
time between the end of one daily rest period and the
beginning of the following daily rest period or between a
daily rest period and a weekly rest period;

(k) ‘weekly driving time’ means the total accumulated driving

time during a week;

(l) ‘permissible maximum weight’ means

the maximum

authorised operating weight of the vehicle fully laden;

(m) ‘regular passenger services’ means national and interna-
tional services as defined in Article 2 of Council Regulation
(EEC) No 684/92 of 16 March 1992 on common rules for
the international carriage of passengers by coach and
bus (1);

(n) ‘multi-manning’ means a situation in which a driver is
engaged in multi-manning a vehicle if there is, during
periods of driving between any two consecutive daily rest
periods, or between a daily rest period and a weekly rest
period, at least one other driver on the vehicle to do the
driving. For the first hour of multi-manning the presence
of another driver or drivers is optional but
the
remainder of the period it is compulsory;

for

(o) ‘transport undertaking’ means any natural person, any
legal person, any association or group of persons without
legal personality, whether profit-making or not, or any
official body, whether having its own legal personality or
being dependent upon an authority having such a person-
ality, which engages in carriage by road, whether for hire
and reward or for own account;

(p) ‘driving period’ means the accumulated driving time from
when a driver commences driving following a rest period
or a regulated break until he takes a rest period or a regu-
lated break. The driving period may be continuous or
broken;

(q) ‘regulated break’

shall mean an uninterrupted break,
subject to a minimum of fifteen minutes, of not less than
five minutes per half-hour, or part thereof, of accumulated
driving time at the time when the regulated break starts.

(1) OJ L 74, 20.3.1992, p. 1. Regulation as last amended by the 2003

Act of Accession.

Article 5

1.

The minimum age for conductors shall be 18 years.

2.
The minimum age for drivers' mates shall be 18 years.
However, Member States may reduce the minimum age for
drivers' mates to 16 years, provided that:

(a) the carriage by road is carried out within one Member State
within a 50 kilometre radius of the place where the vehicle
is based, including local administrative areas the centre of
which is situated within that radius;

(b) the reduction is for the purposes of vocational training; and

(c) there is compliance with the limits imposed by the Member

State's national rules on employment matters.

Article 6

1.

The daily driving time shall not exceed 9 hours.

However, the daily driving time may be extended to at most 10
hours not more than twice during the week.

The weekly driving time shall not exceed 56 hours and
2.
shall not result in the maximum weekly working time as laid
down in Directive 2002/15/EC being exceeded.

The total accumulated driving time during any two conse-

3.
cutive weeks shall not exceed 90 hours.

Daily and weekly driving times shall include all driving

4.
time on the territory of the Community or of a third country.

A driver shall record as ‘other work’ any time spent as
5.
described in Article 4(e) as well as any time spent driving a
vehicle used for commercial operations not falling within the
scope of this Regulation, and shall record any periods of ‘avail-
ability’, as defined in Article 15(3)(c) of Regulation (EEC)
No 3821/85, since his last daily or weekly rest period. This
record shall be entered either manually on a record sheet, a
printout or by use of manual
input facilities on recording
equipment.

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Article 7

After a driving period of four and a half hours a driver shall
take an uninterrupted break of not less than forty-five minutes,
unless he takes a rest period.

The minimum regulated break which corresponds to each
possible driving period is set out in the table below:

— one regular weekly rest period and one reduced weekly rest
period of at least 24 hours. However, the reduction shall be
compensated by an equivalent rest taken en bloc before the
end of the third week following the week in question.

A weekly rest period shall start no later than at the end of six
24-hour periods from the end of the previous weekly rest
period.

Driving period

Minimum regulated break

0 - 90 minutes

15 minutes

7.
Any rest taken as compensation for a reduced weekly rest
period shall be attached to another rest period of at least nine
hours.

91 - 120 minutes

20 minutes

121 - 150 minutes

25 minutes

8.
Daily rest periods and reduced weekly rest periods away
from base may be taken in a vehicle, as long as it has suitable
sleeping facilities for each driver and the vehicle is stationary.

151 - 180 minutes

30 minutes

A weekly rest period that falls in two weeks may be

9.
counted in either week, but not in both.

181 - 210 minutes

35 minutes

211 - 240 minutes

40 minutes

Article 9

241 - 270 minutes (maximum)

45 minutes

Article 8

1.

A driver shall take daily and weekly rest periods.

2. Within each period of 24 hours after the end of the
previous daily rest period or weekly rest period a driver shall
have taken a new daily rest period.

If the portion of the daily rest period which falls within that 24
hour period is at least 9 hours but less than 11 hours, then the
daily rest period in question shall be regarded as a reduced
daily rest period.

A daily rest period may be extended to make a regular

3.
weekly rest period or a reduced weekly rest period.

A driver may have at most

4.
periods between any two weekly rest periods.

three reduced daily rest

By way of derogation from paragraph 2, within 30 hours
5.
of the end of a daily or weekly rest period, a driver engaged in
multi-manning must have taken a new daily rest period of at
least 9 hours.

6.

In any two consecutive weeks a driver shall take at least:

— two regular weekly rest periods, or

1.
By way of derogation from Article 8, where a driver
accompanies a vehicle which is transported by ferry or train,
and takes a regular daily rest period, that period may be inter-
rupted not more than twice by other activities not exceeding
one hour in total.

During the regular daily rest period mentioned in para-

2.
graph 1 the driver shall have access to a bunk or couchette.

CHAPTER III

Liability of the undertakings

Article 10

1.
A transport undertaking shall not give drivers it employs
or who are put at its disposal any payment, even in the form
of a bonus or wage supplement, related to distances travelled
and/or the amount of goods carried if that payment is of such
a kind as to endanger road safety.

2.
A transport undertaking shall organise the work of
drivers referred to in paragraph 1 in such a way that the
drivers are able to comply with Regulation (EEC) No 3821/85
and Chapter II of this Regulation. The transport undertaking
shall properly instruct the driver and shall make regular checks
to ensure that Regulation (EEC) No 3821/85 and Chapter II of
this Regulation are complied with.

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3.
A transport undertaking shall be liable for infringements
committed by drivers of the undertaking, even if the infringe-
ment was committed on the territory of another Member State
or a third country.

down in Articles 6 to 9 in the case of carriage by road under-
taken wholly within its territory. Nevertheless this Regulation
shall remain applicable to drivers engaged in international
transport operations.

Without prejudice to the right of Member States to hold trans-
port undertakings fully liable, Member States may make this
liability conditional on the undertaking's infringement of para-
graphs 1 and 2. Member States may consider any evidence that
the transport undertaking cannot reasonably be held respon-
sible for the infringement committed.

4.
Undertakings, consignors, freight forwarders, tour opera-
tors, prime contractors, subcontractors and driver employment
agencies shall ensure that contractually agreed transport time
schedules respect this Regulation.

5.

(a) A transport undertaking which uses vehicles that are
fitted with recording equipment complying with Annex
IB of Regulation (EEC) No 3821/85 and that fall within
the scope of this Regulation, shall:

(i) ensure that all data are downloaded from the vehicle
unit and driver card as regularly as is stipulated by
the Member State and that relevant data are down-
loaded more frequently so as to ensure that all data
concerning activities undertaken by or
that
undertaking are downloaded;

for

(ii) ensure that all data downloaded from both the
vehicle unit and driver card are kept for at least
twelve months following recording and, should an
inspecting officer request it, such data are accessible,
either directly or remotely, from the premises of the
undertaking;

(b) For the purposes of this paragraph ‘downloaded’ shall be
interpreted in accordance with the definition laid down
in Annex IB, Chapter I, point (5) of Council Regulation
(EEC) No 3821/85;

Article 12

Provided that road safety is not thereby jeopardised and to
enable the vehicle to reach a suitable stopping place, the driver
may depart from Articles 6 to 9 to the extent necessary to
ensure the safety of persons, of the vehicle or its load. The
driver shall indicate the reason for such departure manually on
the record sheet of the recording equipment or on a printout
from the recording equipment or in the duty roster, at the
latest on arrival at the suitable stopping place.

Article 13

1.
Provided the objectives set out in Article 1 are not preju-
diced, each Member State may grant exceptions from Articles 5
to 9 on its own territory or, with the agreement of the States
concerned, on the territory of another Member State, applicable
to carriage by the following:

(a) vehicles owned or hired without a driver by public autho-
rities to undertake carriage by road which do not compete
with private transport undertakings;

(b) vehicles used or hired without a driver by agricultural,
horticultural, forestry, farming or fishery undertakings for
carrying goods as part of their own entrepreneurial activity
within a radius of up to 100 km from the base of the
undertaking;

(c) The maximum period within which the relevant data
shall be downloaded under (a)(i) shall be decided by the
Commission in accordance with the procedure referred
to in Article 24(2).

(c) agricultural tractors and forestry tractors used for agri-
cultural or forestry activities, within a radius of up to
100 km from the base of the undertaking which owns,
hires or leases the vehicle;

CHAPTER IV

Exceptions

Article 11

(d) vehicles or combinations of vehicles with a maximum
permissible weight not exceeding 7,5 tonnes used by
universal service providers as defined in Article 2(13) of
Directive 97/67/EC of the European Parliament and of the
Council of 15 December 1997 on common rules for the
development of the internal market of Community postal
services and the improvement of quality of service (1) to
deliver items as part of the universal service or used for
carrying material or equipment for the driver's use in the
course of his work. These vehicles shall be used only
within a 50 kilometre radius from the base of the under-
taking, and on condition that driving the vehicles does not
constitute the driver's main activity;

A Member State may provide for longer minimum breaks and
rest periods or shorter maximum driving times than those laid

(1) OJ L 15, 21.1.1998, p. 14. Directive as last amended by Regulation

(EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1).

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(e) vehicles operating exclusively on islands not exceeding
2 300 square kilometres in area which are not linked to
the rest of the national territory by a bridge, ford or tunnel
open for use by motor vehicles;

(f) vehicles used for the carriage of goods within a 50 km
radius from the base of the undertaking and propelled by
the
means of natural or
maximum permissible weight of which,
including the
weight of a trailer or
semi-trailer, does not exceed
7,5 tonnes;

liquefied gas or electricity,

(g) vehicles used for driving instruction and examination with
a view to obtaining a driving licence or a certificate of
professional competence, provided that they are not being
used for the commercial carriage of goods or passengers;

(h) vehicles used in connection with sewerage, flood protec-
tion, or water services, road maintenance and control, or
collection or disposal
door-to-door household refuse
services;

(i) vehicles with between 10 and 17 seats used exclusively for

the non-commercial carriage of passengers;

(j) specialised vehicles transporting circus and fun-fair equip-

ment;

(k) specially fitted mobile project vehicles,

the primary
purpose of which is use as an educational facility when
stationary;

(l) vehicles used for milk collection from farms and the return
to farms of milk containers or milk products intended for
animal feed;

(m) specialised vehicles transporting money and/or valuables;

— regular domestic passenger services, where their schedule is
confirmed by the authorities (in which case only exemp-
tions relating to breaks may be permitted) and

— domestic road haulage operations for own account or for
hire or reward, which have no impact on the single market
and are needed to maintain certain sectors of industry in
the territory concerned and where the exempting provisions
of
this Regulation impose a limiting radius of up to
100 km.

Carriage by road under this exemption may include a journey
to an area with a population density of 5 persons or more per
square kilometre only in order to end or start the journey. Any
such measures shall be proportionate in nature and scope.

Article 14

Provided that the objectives set out in Article 1 are not
1.
prejudiced, Member States may, after authorisation by the
Commission, grant
application of
Articles 6 to 9 to transport operations carried out in excep-
tional circumstances.

exceptions

from the

2.
In urgent cases Member States may grant a temporary
exception for a period not exceeding 30 days, which shall be
notified immediately to the Commission.

The Commission shall inform the other Member States of

3.
any exception granted pursuant to this Article.

Article 15

Member States shall ensure that drivers of vehicles referred to
in Article 3(a) are governed by national rules which provide
adequate protection in terms of permitted driving times and
mandatory breaks and rest periods.

(n) vehicles used for carrying animal waste or carcasses which

are not intended for human consumption;

CHAPTER V

(o) vehicles used exclusively on roads inside hub facilities such

as ports, interports and railway terminals.

Control procedures and sanctions

2. Member States shall inform the Commission of the excep-
tions granted under paragraph 1 and the Commission shall
inform the other Member States thereof.

3.
Provided that the objectives set out in Article 1 are not
prejudiced and adequate protection for drivers is provided, a
Member State may, after approval by the Commission, grant
on its own territory minor exemptions from this Regulation for
vehicles used in predefined areas with a population density of
less than 5 persons per square kilometre,
in the following
cases:

Article 16

1. Where no recording equipment has been fitted to the
vehicle in accordance with Regulation (EEC) No 3821/85, para-
graphs 2 and 3 of this Article shall apply to:

(a) regular national passenger services, and

(b) regular international passenger services whose route term-
inals are located within a distance of 50 km as the crow
flies from a frontier between two Member States and whose
route length does not exceed 100 km.

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2.
A service timetable and a duty roster shall be drawn up
by the transport undertaking and shall show, in respect of each
driver, the name, place where he is based and the schedule laid
down in advance for various periods of driving, other work,
breaks and availability.

Each driver assigned to a service referred to in paragraph 1
shall carry an extract from the duty roster and a copy of the
service timetable.

No 3821/85 and shall take all measures necessary to ensure
that they are implemented. Those penalties shall be effective,
proportionate, dissuasive and non-discriminatory. No infringe-
ment of this Regulation and Regulation (EEC) No 3821/85
shall be subjected to more than one penalty or procedure. The
Member States shall notify the Commission of these measures
and the rules on penalties by the date specified in the second
subparagraph of Article 29. The Commission shall
inform
Member States accordingly.

3.

The duty roster shall:

(a) include all the particulars specified in paragraph 2 for a
minimum period covering the previous 28 days;
these
particulars must be updated on regular intervals, the dura-
tion of which may not exceed one month;

(b) be signed by the head of the transport undertaking or by a

person authorised to represent him;

(c) be kept by the transport undertaking for one year after
expiry of the period covered by it. The transport under-
taking shall give an extract from the roster to the drivers
concerned upon request; and

(d) be produced and handed over at

the request of an

authorised inspecting officer.

Article 17

1. Member States, using the standard form set out in Deci-
sion 93/173/EEC (1), shall communicate the necessary informa-
tion to the Commission to enable it to draw up every two
years a report on the application of this Regulation and Regu-
lation (EEC) No 3821/85 and developments in the fields in
question.

2.
This information shall be communicated to the Commis-
sion not later than 30 September of the year following the end
of the two-year period concerned.

3.
The Commission shall forward the report to the European
Parliament and to the Council within 13 months of the end of
the two-year period concerned.

2.
A Member State shall enable the competent authorities to
impose a penalty on an undertaking and/or a driver for an
infringement of this Regulation detected on its territory and for
which a penalty has not already been imposed, even where that
infringement has been committed on the territory of another
Member State or of a third country.

By way of exception, where an infringement is detected:

— which was not committed on the territory of the Member

State concerned, and

— which has been committed by an undertaking which is
established in, or a driver whose place of employment is, in
another Member State or a third country,

a Member State may, until 1 January 2009, instead of imposing
a penalty, notify the facts of the infringement to the competent
authority in the Member State or the third country where the
undertaking is established or where the driver has his place of
employment.

3. Whenever a Member State initiates proceedings or
imposes a penalty for a particular infringement, it shall provide
the driver with due evidence of this in writing.

4. Member States shall ensure that a system of proportionate
penalties, which may include financial penalties, is in force for
infringements of this Regulation or Regulation (EEC) No 3821/
85 on the part of undertakings, or associated consignors,
freight
tour operators, prime contractors, sub-
contractors and driver employment agencies.

forwarders,

Article 18

Member States shall adopt such measures as may be necessary
for the implementation of this Regulation.

Article 20

Article 19

1. Member States shall lay down rules on penalties applic-
able to infringements of this Regulation and Regulation (EEC)

1.
The driver shall keep any evidence provided by a Member
State concerning penalties imposed or the initiation of proceed-
ings until such time as the same infringement of this Regu-
lation can no longer lead to a second proceeding or penalty
pursuant to this Regulation.

(1) OJ L 72, 25.3.1993, p. 33.

The driver shall produce the evidence referred to in para-

2.
graph 1 upon request.

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3.
A driver who is employed or at the disposal of more than
one transport undertaking shall provide sufficient information
to each undertaking to enable it to comply with Chapter II.

Article 21

Where a Member State considers that there has been an infrin-
gement of this Regulation which is of a kind that is clearly
liable to endanger road safety,
it shall be empowered to
proceed with immobilisation of the vehicle concerned until
such time as the cause of the infringement has been rectified.
Member States may compel the driver to take a daily rest
period. Member States may also withdraw, suspend or restrict
an undertaking's licence,
if the undertaking is established in
that Member State, or withdraw, suspend or restrict a driver's
driving licence. The Committee referred to in Article 24(2)
shall develop guidelines with a view to promoting a harmo-
nised application of this Article.

Article 22

1. Member States shall assist each other in applying this
Regulation and in checking compliance herewith.

The competent authorities of the Member States shall

2.
regularly exchange all available information concerning:

(a) infringements of the rules set out in Chapter II committed
by non-residents and any penalties imposed for such infrin-
gements;

Article 25

At the request of a Member State, or on its own initiative,

1.
the Commission shall:

(a) examine cases where differences in the application and
enforcement of any of the provisions of this Regulation
arise and particularly concerning driving times, breaks and
rest periods;

(b) clarify the provisions of this Regulation, with a view to

promoting a common approach.

2.
In the cases referred to in paragraph 1 the Commission
shall take a decision on a recommended approach in accord-
ance with the procedure referred to in Article 24(2). The
Commission shall communicate its decision to the European
Parliament, the Council and to the Member States.

CHAPTER VI

Final provisions

Article 26

Regulation (EEC) No 3821/85 is hereby amended as follows:

1. Article 2 shall be replaced by the following:

(b) penalties imposed by a Member State on its residents for
such infringements committed in other Member States.

‘Article 2

The Member States shall regularly send relevant informa-
3.
tion concerning the national interpretation and application of
this Regulation to the Commission, which will make this infor-
mation available in electronic form to other Member States.

For the purpose of this Regulation the definitions set out in
Article 4 of Regulation (EC) No… of the European Parlia-
ment and of the Council of.... on the harmonisation of
certain social
legislation relating to road transport and
amending Council Regulations (EEC) No 3821/85 and (EC)
No 2135/98 (*) shall apply.

Article 23

(*) OJ L …;’

The Community shall enter into any negotiations with third
countries which may prove necessary for the purpose of imple-
menting this Regulation.

Article 24

The Commission shall be assisted by the committee

1.
referred to in Article 18(1) of Regulation (EEC) No 3821/85.

2. Article 3(1), (2) and (3) shall be replaced as follows:

‘1.
Recording equipment shall be installed and used in
vehicles registered in a Member State which are used for the
carriage of passengers or goods by road, except the vehicles
referred to in Articles 3 and 16(1) of Regulation (EC)
No… (*) and vehicles, which were exempted from the scope
of application of Regulation (EEC) No 3820/85, but which
are no longer exempted under Regulation (EC) No… (*)shall
have until 31 December 2007 to comply with this require-
ment.

2. Where reference is made to this paragraph, Articles 3 and
7 of Decision 1999/468/EC shall apply, having regard to the
provisions of Article 8 thereof.

2. Member States may exempt vehicles mentioned in
Articles 13(1) and (3) of Regulation (EEC) No..... (*) from
application of this Regulation.

3.

The Committee shall adopt its rules of procedure.

(*) This Regulation.

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3. Member States may,
authorisation by the
Commission, exempt from application of this Regulation
vehicles used for the transport operations referred to in
Article 14 of Regulation (EEC) No… (*).’;

after

3. Article 14(2) shall be replaced as follows:

‘2.
The undertaking shall keep record sheets and print-
outs, whenever printouts have been made to comply with
Article 15(1), in chronological order and in a legible form
for at least a year after their use and shall give copies to the
drivers concerned who request them. The undertaking shall
also give copies of downloaded data from the driver cards
to the drivers concerned who request them and the printed
papers of these copies. The record sheets, printouts and
downloaded data's shall be produced or handed over at the
request of any authorised inspecting officer.’;

4. Article 15 shall be amended as follows:

— In paragraph 1, the following subparagraph shall be

added:

‘Where a driver card is damaged, malfunctions or is not
in the possession of the driver, the driver shall:

(i) at the start of his journey, print out the details of the
vehicle the driver is driving, and shall enter onto
that printout:

(a) details that enable the driver to be identified
(name, driver card or driver's licence number),
including his signature;

(b) the periods referred to in paragraph 3, second

indent (b), (c) and (d).

(ii) at the end of his journey, print out the information
relating to periods of time recorded by the recording
equipment, record any periods of other work, avail-
ability and rest undertaken since the printout that
was made at the start of the journey, where not
recorded by the tachograph, and mark on that docu-
ment details that enable the driver to be identified
(name, driver card or driver's
licence number),
including the driver's signature.’;

— Paragraph 2, second subparagraph shall be replaced by

the following:

‘When as a result of being away from the vehicle, a
driver is unable to use the equipment
fitted to the
vehicle, the periods of time referred to in paragraph 3,
second indent (b), (c) and (d) shall:

(*) This Regulation.

(i) if the vehicle is fitted with recording equipment in
conformity with Annex I, be entered on the record
sheet, either manually, by automatic recording or
other means, legibly and without dirtying the sheet;
or

(ii) if the vehicle is fitted with recording equipment in
conformity with Annex IB, be entered onto the
driver card using the manual entry facility provided
in the recording equipment.

Where there is more than one driver on board the
vehicle fitted with recording equipment in conformity
with Annex IB, they shall ensure that their driver cards
are inserted into the correct slot in the tachograph.’;

— Paragraph 3(b) and (c)

shall be replaced by the

following:

‘(b) “other work” means any activity other than driving,
as defined in Article 3(a) of Directive 2002/15/EC of
the European Parliament and of
the Council of
11 March 2002 on the organisation of the working
time of persons performing mobile road transport
activities (*), and also any work for the same or
another employer within or outside of the transport
sector, and must be recorded under this sign #.

(c) “availability” defined in Article 3(b) of Direc-
tive 2002/15/EC must be recorded under this sign
#.

(*) OJ L 80, 23.3.2002, p. 35.’

— Paragraph 4 shall be deleted;

— Paragraph 7 shall be replaced by the following:

‘7 (a) Where the driver drives a vehicle fitted with
recording equipment in conformity with Annex I,
the driver must be able to produce, whenever an
inspecting officer so requests:

(i) the record sheets for the current week and
those used by the driver in the previous
15 days;

(ii) the driver card if he holds one, and

(iii) any manual record and printout made during
the current week and the previous 15 days
as required under this Regulation and Regu-
lation (EEC) No … (*).

However, after 1 January 2008, the time periods
referred to under (i) and (iii) shall cover the
current day and the previous 28 days.

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(b) Where the driver drives a vehicle fitted with
recording
conformity with
Annex IB, the driver must be able to produce,
whenever an inspecting officer so requests:

equipment

in

(i) the driver card of which he is holder;

(ii) any manual record and printout made during
the current week and th previous 15 days as
required under this Regulation and Regu-
lation (EEC) No … (*), and

(iii) the record sheets corresponding to the same
period as the one referred to in the previous
subparagraph during which he drove a
vehicle fitted with recording equipment in
conformity with Annex I.

However, after 1 January 2008, the time periods
referred to under (ii) shall cover the current day
and the previous 28 days.

(c) An authorised inspecting officer may check
compliance with Regulation (EEC) No … (*) by
analysis of the record sheets, of the displayed or
printed data which have been recorded by the
recording equipment or by the driver card or,
failing this, by analysis of any other supporting
document that justifies non-compliance with a
provision, such as those laid down in Article 16(2)
and (3).’

Article 27

2. Article 2(2) shall be replaced by the following:

‘2. Member States shall take the necessary measures to
ensure that they are able to issue driver cards at the latest
on 5 May 2005.’

Article 28

Regulation (EEC) No 3820/85 is hereby repealed.

Notwithstanding, paragraphs 1, 2 and 4 of Article 5 shall
continue to apply until the dates set out in Article 15(1) of
Directive 2003/59/EC of the European Parliament and of the
Council of 15 July 2003 on the initial qualification and peri-
odic training of drivers of certain road vehicles for the carriage
of goods or passengers (*).

Article 29

This Regulation shall enter into force one year after the day of
its publication in the Official Journal of the European Union, with
the exception of Article 27, which shall enter into force as
from the twentieth day following the day of publication.

It shall apply from … (1).

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

Regulation (EC) No 2135/98 is hereby amended as follows:

1. Article 2(1)(a) shall be replaced by the following:

Done at Brussels, …

‘1. (a) After 5 August 2005, vehicles put into service for
the first time shall be fitted with recording equip-
ment in accordance with the requirements of Annex
IB to Regulation (EEC) No 3821/85’.

For the European Parliament

The President

For the Council

The President

(*) This Regulation.

(*) This Regulation.
(1) OJ L 226, 10.9.2003, p. 4. Directive as amended by Council Direc-

tive 2004/66/EC (OJ L 168, 1.5.2004, p. 35).

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

Procedure

In the framework of the codecision procedure (Article 251 EC Treaty), the European Parliament
adopted its opinion on 14 January 2003 (1) on the Commission proposal, as submitted on
12 October 2001. Thereafter, the Commission presented an amended proposal on 12 August 2003.

As compared to the original proposal, the amended proposal has incorporated a considerable number
of the amendments adopted by the European Parliament, and has also taken into account work which
was already performed previously by the Council instances.

The draft Regulation seeks to replace the legislation currently in force, namely Regulation (EEC)
3820/85 on the harmonisation of certain social legislation relating to road transport (2). This latter
Regulation has so far governed driving and resting times and breaks for professional drivers. Further-
more, the draft Regulation proposes to amend Regulation (EEC) 3821/85, catering in particular for
technical aspects relating to the introduction of the digital tachograph. It also provides for the post-
ponement of the deadlines for the introduction of this new device and for the availability of driver
cards.

The Council adopted its common position on 9 December 2004 In carrying out its work, the Council
also took account of the opinion of the Economic and Social Committee (3).

Main aims of the draft Regulation

The draft Regulation aims to:

— adapt the mechanism of driving times, breaks and rest periods in order to improve working condi-
tions for the professional drivers in the transport sector, whilst also taking into account insights
gained in terms of the interrelationship between road safety and driving times of professional
drivers;

— ensure that the introduction of the digital tachograph allows a much more effective enforcement of
the rules in question. The postponement of the deadline for its mandatory fitting takes account of
the capabilities of the industry in supplying the new device.

This draft legislation makes a significant contribution to enhancing road safety; in fact, its adoption
constitutes a significant step forward in the attainment of the EU's objective of halving road accident
fatalities by 2010.

II. ANALYSIS OF THE COMMON POSITION

The Commission submitted its initial proposal on 12 October 2001 as a response to the widely
perceived and urgent need to clarify, simplify and update the provisions of Regulation (EEC) No3820/
85. In examining this proposal, the Council, from the outset of proceedings, was confronted with the
challenge of striking a balance between concerns pertaining to road safety, social considerations and
industry flexibility. This was not an easy task, entailing protracted discussions within the Council
instances. The eventual agreement within the Council, as reflected in its common position, was facili-
tated through the submission of the Commission's amended proposal on 12 August 2003.

(1) OJ C 38 E, 12.2.2004, p. 152.
(2) OJ L 370, 31.12.1985, p. 1.
(3) OJ C 221, 17.9.2002, p. 19.

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Council holds the view that its common position provides a considerable added value as compared to
the legislation currently in force. Among the elements which provide such added value are the
following:

— the minimum uninterrupted daily rest period is increased from 8 to 9 hours;

— the maximum driving time per calendar week is reduced to 56 hours (currently it is possible to

drive up to 74 hours in one calendar week);

— during two consecutive weeks, a driver must take at least one regular weekly rest period consisting

of an uninterrupted period of at least 45 hours;

— the legal framework is created for Member States, subject to certain conditions:

= to immobilise temporarily a vehicle;

= to withdraw, suspend or restrict an undertaking's licence;

= to withdraw, suspend or restrict a driver's driving licence.

Guidelines with a view to promoting a harmonised application of these provisions will be devel-
oped in accordance with the Comitology procedure;

— the time period which can effectively be checked by enforcement officers is increased significantly,
from ‘the current week and the last driving day of the previous week’ to ‘the current week and the
previous 15 days’. After 1 January 2008 this period is increased even further, to ‘the current day
and the previous 28 days’. These provisions enable enforcers to benefit from the capabilities of the
digital tachograph;

— the number and scope of the general exemptions is reduced;

— competent authorities in the Member States will be empowered to impose a sanction for an infrin-
gement detected on its territory, even when the infringement has been committed outside its terri-
tory;

— other actors in the transport chain can, under certain conditions, be held co-liable for infringe-

ments.

Council also recalls that, as concerns the introduction of the digital tachograph (i.e. the fitting of this
equipment to all new heavy goods vehicles), it has extended the deadline for this by 1 year, to 5 August
2005 (cf. Article 27) due to practical considerations. Furthermore, the Council common position,
through the amendment of the relevant instrument (Regulation (EEC) No 3821/85), provides for a
number of improvements when it comes to operating this device.

Amendments of the European Parliament

Council was able to accept a considerable number of Parliament's amendments in full, namely amend-
ments 1, 2, 7, 21, 25, 26, 27, 30, 32, 33, 37, 41, 44, 47, 52, 53. Furthermore, Council accepted,
albeit with a different wording, amendments 3 (in recital 11), 5, 6, 31, 34, 43, 48, 54, 62 (in Article
25(iii)), 65 and 66.

Council was able to accept partially amendments 4, 12, 17, 18, 107 (as a compromise, Council
adopted a provision stating that only reduced weekly rest periods may be taken in a vehicle) and 45
(Council considers the provisions contained in Article 8.6 and 8.7 to be roughly equivalent).

As regards amendment 39, Council adopted a different solution to this problem; this is reflected in
Article 6.5.

Of the amendments which were not incorporated by the Commission in its amended proposal, Council
accepted nevertheless amendments 20 and 58.

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Council rejected amendments 8, 11, 14, 89, 19, 22, 28, 78, 42, 51, 55, 56, 61, 67, 69 and 70.
Council furthermore rejected the list of amendments which is reflected hereafter, together with expla-
natory comments:

— amendment 49; it should be noted that Council's provisions regarding this particular issue consist
of the provisions of Article 5(a)ii and Article 19bis - this latter Article notably takes on board the
notion introduced by Parliament regarding the situation in which a driver works for more than one
transport undertaking;

— amendment 9 - although Council agrees that enforcers should be able to check the current day and
the preceding 28 days, it felt that no absolute obligation should be put on enforcers to do so,
leaving it to them to make their own judgement;

— as regards amendment 10, Council holds the opinion that this Regulation should focus on driving

and resting times and not on working time as a whole;

— regarding amendment 13, it should be underlined that Council included a somewhat similar provi-

sion in Article 6.2;

— concerning amendments 15 and 16 which concern the AETR, and which are linked to amendment

4, Council holds the view that its solution for this problem ensures an equivalent safeguard;

— as regards amendments 23 and 24 which deal with exemptions for certain categories of vehicles,
Council included these categories in Article 13, so that Member States may exempt these categories
on their national territory;

— as regards amendment 29, Council holds the view that a definition of ‘driving time’ is not neces-

sary;

— amendment 35: Council is of the opinion that these minimum ages should be addressed in the rele-
vant Community legislation pertaining to driving licences and to the training of professional
drivers;

— as regards amendment 83, Council proposes in Article 7 a similar system which addresses the same

traffic safety issue but which, it feels, is more easily applied and checked;

— amendment 57 - Council underlines however that two elements of this amendment are included in

Article 13(k) and (m) of the common position;

— concerning amendment 59, Council points out that to some extent, Article 13(b) caters for this par-

ticular situation;

— amendments 60 and 63 - Council considers that such provisions belong in the proposed draft

Directive on enforcement (1) which is closely linked to this draft Regulation;

— as regards amendment 64, Council notes that it did accept the reference to ‘non-discrimination’;

— amendment 68 - since Council considers that the current provisions contained in Article 20, 21,

23 and 24 suffice.

III. CONCLUSION

The Council could accept most of Parliament's amendments (cf. also the list of ‘added value’ elements
under II) when it comes to the ‘core provisions’ of the draft Regulation - pertaining to daily or weekly
driving and resting times and to breaks, but also to issues of scope and enforcement. Hence, it can be
concluded that there exists a large degree of convergence between the two Institutions on the key
elements of this draft instrument.

(1) ‘Draft Directive of the European Parliament and of the Council on minimum conditions for the implementation of
Directive 2002/15/EC and Council Regulations (EEC) 3820/85 and 3821/85 concerning social legislation relating to
road transport activities.’