Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of 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
Date: 2004-12-14
Institutions: European Commission
Subjects: application of EU law, driving period, police checks, rest period, road transport, traffic regulations, transport regulations, transport staff

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 14.12.2004 
COM(2004)815 final 

2003/0255(COD) 

COMMUNICATION FROM THE COMMISSION TO THE 
EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 
common position of the Council on the adoption of 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 

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2003/0255(COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of 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 

(Text with EEA relevance) 

1- 

BACKGROUND 

Date of transmission of the proposal to the EP and the Council 
(document COM(2003) 628 final – 2003/0255(COD)): 

2 December 2003 

Date of the opinion of the European Economic and Social Committee: 

3 June 2003 

Date of the opinion of the European Parliament, first reading: 

20 April 2004 

Date of adoption of the common position: 

9 December 2004 

2- 

OBJECTIVE OF THE COMMISSION PROPOSAL 

Council  Directive  88/599/EEC  of  29  November  1988  established  common  minimum 
enforcement  levels  for  road  transport  driving  time  and  rest  period  rules  contained  in 
Regulation  (EEC)  3820/85,  essentially  1%  of  days  worked  by  drivers  of  vehicles  falling 
within the scope of the Regulation, and a minimum of 2 concerted checks per year carried out 
by two or more Member State enforcement authorities. The liberalisation of the road transport 
sector, the advent of the single market, the subsequent rise in road transport as the dominant 
inland  transport  mode  and  the  fierce  competition  now  within  the  sector  merit  a  better 
enforcement of Community social rules.  

With  this  in  mind  the  Commission  made  a  proposal  to  increase  the  quantity  of  checks, 
improve  the  quality  of  checks  and  address  the  issue  of  a  harmonised  approach  to 
infringements and sanctions.  

In terms of increasing the quantity of checks, the Commission proposed raising the minimum 
percentage to 3% immediately, with a greater percentage of such checks being carried out at 
the  premises  (at  least  50%  as  opposed  to  the  current  25%)  and  also  an  increased  minimum 
percentage being carried out at the roadside (at least 30% as opposed to the current 15%). In 
terms of concerted  checks, the  Commission proposed to increase the minimum from two to 

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six  per  year,  to  encourage  greater  cooperation  and  exchange  of  best  practice  on  the  ground 
between enforcement authorities.  

To enhance the quality of enforcement activities, the Commission proposed minimum training 
and  equipment  for  enforcement  staff,  the  development  and  implementation  of  a  national 
enforcement  strategy  by  Member  States,  the  designation  of  a  co-ordinating  body  to  oversee 
this strategy and liaise with enforcement authorities of other Member States. In terms of road 
infrastructure, sufficient parking areas were to be put in place to allow drivers to rest and to 
facilitate  roadside  checks.  In  terms  of  co-operation  between  Member  State  enforcement 
authorities, a committee would be established to facilitate exchange of best practice, prepare 
common rules on risk assessment of undertakings for targeting enforcement operations, agree 
on  uniform  documentation  concerning  proof  of  sick  and  annual  leave  and  the  criteria  for  a 
common electronic exchange of information and intelligence. Joint training sessions were also 
envisaged.  

As  regards  a  common  approach  to  infringements  and  sanctions,  the  Commission  proposed 
that  Member  States  make  available  to  their  enforcement  authorities  the  temporary 
immobilisation  of  a  vehicle,  along  with  other  specified  sanctions.  Proportionate  financial 
sanctions were proposed for those in the transport chain where non compliance of these rules 
has  led  to  profits  for  them.  A  common  list  of  serious  infringements  was  set  out,  for  which 
Member States were to notify the sanctions laid down. The Commission would then draw up 
a report analysing the penalties set out for serious infringements and concluding on the extent 
to which they should be harmonised.  

3- 

COMMENTS ON THE COMMON POSITION 

The  Council  made  some  substantive  changes  relative  to  the  Commission's  proposal  that  are 
for the most part acceptable because they ensure its aims are ultimately met. 

The  first  concerns  the  provisions  on  sanctions  and  serious  infringements.  The  Council  has 
taken  the  provisions  relating  to  vehicle  immobilisation,  the  range  of  sanctions  available  to 
competent  authorities,  as  well  as  co-liability  and  appropriate  financial  sanctions  for  the 
transport chain for infringements and inserted them in the sister proposal for a Regulation on 
driving times and rest periods which will replace the current Regulation (EEC) 3820/85. As 
these issues relate more to infringements of the Regulation’s provisions and sit better in this 
proposal,  the  Commission  is  content  that  they  are  put  there.  Moreover  as  the  Regulation’s 
provisions  are  directly  applicable,  there  will  be  a  greater  measure  of  uniformity  in 
implementation. The Commission regrets that the Council did not see fit however to include a 
common definition of serious infringements of the social rules. This renders less focused the 
subsequent  Article  requiring  the  Commission  to  report  on  Member  State’s  sanctions  for 
serious offences. 

The second change is the linkage of an increase in the overall minimum percentage of checks, 
as well as the greater minimum proportion of checks to be conducted on the premises or at the 
roadside,  with  the  introduction  of  the  digital  tachograph.  For  this  reason  the  Council  has 
proposed a staged increase, firstly in the proportion of the minimum checks to be taken at the 
roadside  and  on  the  premises  as  from  1.1.2008,  and  secondly  in  terms  of  an  increase  in 
minimum  checking  levels  from  1.1.2009  onwards.  The  move  to  a  minimum  of  3%  is  no 
longer  immediate,  as  the  Commission  proposed,  but  only  by  2011,  with  an  interim  stage  of 
2% only from 1.1.2009. Given that several Member States currently already check more than 

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2% without the benefit of the digital tachograph, this demonstrates a lack of ambition by the 
Member  States.  However  the  Commission  is  prepared  to  live  with  the  long  delay,  in  the 
knowledge that given this long lead-in period, all Member States should be able to organise 
themselves to easily meet the increased minimum requirements. The Council also limited to 
4% any further possible increase in the minimum percentage of checks through comitology, 
on condition that it could only come about from 2013 onwards, and if over 90% of vehicles 
checked were equipped with a digital tachograph. Unlike the Commission proposal, this sets a 
ceiling  on  further  increases  by  comitology.  However  it  indicates  Council’s  willingness  to 
consider  higher  enforcement  levels  and  to  that  extent  is  to  be  welcomed  as  a  positive,  if 
delayed, signal regarding commitment to enforcement. It is likely that by 2013, the condition 
concerning  digital  tachographs  will  have  been  fulfilled.  For  this  reason,  within  Article  3, 
Member  States  have  added  that  statistics  on  type  of  tachograph  used  should  be  collected 
during checks and that checks should not discriminate on the basis of tachograph used.  

The final major change is the exclusion of the enforcement of the sectoral working time rules 
in  Directive  2002/15/EC  from  the  scope  of  the  proposed  Directive.  While  the  Commission 
could not see  the logic  of  a  Directive  aimed at  enhanced  enforcement  of  Community  social 
rules which nevertheless excluded some core social elements, in the face of opposition from 
the majority of Member States, and to facilitate agreement on the dossier within the Council, 
the Commission agreed to the exclusion of these rules from the proposal.  

In  addition,  the  Council  distinguished  between  on  the  one  hand  designating  a  co-ordinating 
body  for  international  liaison  to  gather  enforcement  statistics  from  the  relevant  competent 
authorities  and  liaise  with  their  opposite  numbers  in  other  Member  States  and  on  the  other 
hand an optional co-ordinating body to develop and oversee the implementation of a national 
enforcement strategy. For some Member States these two functions might be undertaken by 
two  different  organisations.  The  Commission  welcomes  the  commitment  to  a  national 
enforcement strategy and a measure of coordination between competent authorities, at least in 
relations with other Member States and the Commission.  

The  Commission  accepted  wholly  or  in  part  twenty-one  out  of  the  thirty-eight  amendments 
proposed by the European Parliament at its first reading. The Council has included eight, as 
they  stand,  in  principle,  or  in  part,  in  its  common  position.  While  not  issuing  an  amended 
proposal following Parliament’s first reading, the Commission has made clear to the Council 
in  the  course  of  discussions  in  that  institution,  those  Parliamentary  amendments  which  it 
supports and those which it rejects and the reasons for its stance.  

4- 

COMMISSION DETAILED COMMENTS 

4.1  Amendments  accepted  by  the  Commission  and  incorporated  in  full  or  in  part  in  the 
common position 

The references below are to recitals and articles of the common position. 

Amendment 3. The wording of this amendment reflects the aim of the key social instruments 
for  which  enforcement  measures  are  provided  through  this  Directive.  The  Council  has 
inserted it in Recital 1 in a slightly modified form. 

Amendment 12(part). The amendment ensures that the title and aim of the proposed Directive 
are consistent. This aspect is incorporated into the common position   

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Amendment  21.  Statistics  collected  on  checks  will  now also  include  the  type  of  tachograph 
used  to  avoid  discrimination  and  will  help  determine  whether  the  condition  for  a  further 
increase  in  the  percentage  of  checks  set  out  in  Article  2(2)  second  paragraph  has  been 
fulfilled. The Commission could also accept inclusion of the country of registration but this 
was not taken up in the common position.  

Amendment  42.  In  Annex  I  Part  A,  the  Commission  accepts  that  roadside  checks  may  also 
cover weekly and fortnightly driving times as well as weekly rest periods. However while the 
Transport Council reached a political agreement on the Commission’s amended proposal on 
driving times and rest periods on 11 June 2004, in which a weekly driving time limit is set, 
the common position on enforcement of these rules does not provide a check on this new limit 
at  the  roadside.  Only  the  inclusion  of  checks  on  weekly  rest  periods  at  the  roadside  is 
foreseen. For the Commission this is a significant missed opportunity in terms of checks on 
driving time. 

4.2 Amendments accepted by the Commission and not incorporated in the common position 

Amendment 5. The amendment sets as a goal interoperability in national monitoring systems. 
The  Commission  accepted  this  in  principle  subject  to  coordination  at  EU  level.  While  the 
Council  common  position  omits  any  reference  to  interoperability;  it  leaves  open  the 
possibility for it to form part of the remit of the new Committee to be set up under Article 13. 

Amendments 6, 7, 20, 63 and 29 (in part). These amendments seek to reinforce the aim of the 
proposal through the use of more definite language. However the common position retains the 
original text of the proposal.  

Amendment  19  (part).  The  amendment  places  a  requirement  on  Member  State  enforcement 
authorities  to  ensure  a  balanced  approach  to  checks  at  the  premises  of  enterprises,  by 
stipulating that at least 50 % of checks cover SMEs. The common position does not impose 
this obligation. 

Amendment  24  (part).  The  amendment  proposes  various  examples  where  provision  for 
checkpoints should be made. The Commission supported the overall phrase concerning other 
‘safe  locations’.  The  common  position  prefers  not  to  elaborate  on  the  provision  for 
checkpoints. 

Amendment  26.  The  amendment  aims  to  ensure  that  sleeping  drivers  are  not  unnecessarily 
disturbed  by  checks.  While  the  Council  sympathised  with  the  intention  behind  this 
amendment, it nevertheless found it too problematic in practice.  

Amendment  28.  The  amendment  emphasises  that  in  terms  of  mutual  assistance  between 
Member  States,  potential  infringements  will  be  investigated  by  the  Member  State  of 
establishment  by  means  of  a  check  on  the  relevant  undertaking’s  premises.  The  common 
position retains the original wording, as the Council considers Article 6(4) covers this issue.  

Amendment 31. The amendment places an obligation on Member States to publish the data 
collected.  The  Council  considered  that  the  Commission’s  biennial  report,  incorporating 
specific data from Member States, was sufficient. 

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Amendment  32. The amendment seeks to ensure  that any sanction, including the temporary 
immobilisation  of  a  vehicle  will  be  carried  out  without  discrimination.  The  Council  has 
transferred the Article on sanctions and immobilisation to the sister proposal on driving times 
and rest periods, where in the common position on that proposal under Article 19(1) there is 
inclusion of non-discrimination within the characteristics of sanctions to be used. 

Amendments 35 - 37. The first amendment seeks to be more inclusive in what constitutes a 
serious  offence  against  the  maximum  working  time  provision  within  Directive  2002/15/EC. 
The Council decided to remove this Directive from the scope of application of the proposal 
and also to omit any common list of serious offences. Thus the reference to those to whom the 
list applies also falls, as does the date for notification of specific sanctions. Nevertheless, the 
common  position  on  the  sister  proposal  on  driving  times  and  rest  periods  does  stipulate  in 
Articles 19(1) and 27 that the Member States are to inform the Commission of their rules on 
sanctions within one year. 

Amendment 39. The amendment elaborates the nature of the Commission report on sanctions. 
The  common  position  retains  the  bare  requirement  for  a  report  on  serious  sanctions  while 
eliminating the common list of serious sanctions.    

Amendment  40.  The  amendment  allows  the  Commission  the  flexibility  of  publishing 
guidelines  on  enforcement  practice  in  a  separate  document  from  its  current  biennial  report. 
The common position retains the original wording. 

4.3 Amendments rejected by the Commission yet incorporated in the common position 

Amendment  19  (part).  The  amendment  returns  to  the  current  situation  where  15%  of  the 
current  minimum  percentage  of  days  worked  to  be  checked  should  be  at  the  roadside.  The 
common position reflects this temporarily, while then moving to at least 30% after 1.1.2008. 

Amendment  23  (part).  The  common  position  includes  a  requirement  for  Member  States  to 
keep a record of data collected for the previous year.  

Amendment 27. The common position forbids discrimination in roadside checks on the basis 
of whether vehicles are fitted with an analogue or digital tachograph. 

4.4 Amendments rejected by the Commission and not incorporated in the common position  

Amendments  1,  15,  34  and  66.  These  amendments  require  checks  to  include  inspection  of 
third country driver attestations. However, the relevant Regulation already prescribes a more 
extensive checking requirement for Member States.  

Amendment  11.  The  amendment  requires  a  reference  to  the  new  Regulation  proposed  to 
replace  the  current  Regulation  (EEC)  3820/85.  This  is  unnecessary  as  upon  adoption 
reference to the latter Regulation will be taken to be a reference to the new Regulation.  

Amendment  13,  14  and  16.  These  amendments  include  the  definition  of  driver  and  the 
relationship  between  AETR  and  Community  rules  on  driving  time  and  rest  periods.  The 

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common  position  on  the  sister  proposal  on  driving  times  and  rest  periods  has  set  out  a 
different definition and relationship. These would be valid for the enforcement proposal.  

Amendments 18, 30, 41. These amendments are procedurally or institutionally incorrect. An 
increase  in  the  percentage  of  days  worked  to  be  checked  cannot  be  authorised  by  the 
Commission and Parliament alone; an unequivocal uniform interpretation of the rules cannot 
be made by individual Member States, but only on a Community basis; comitology legislative 
provisions do not allow a legal requirement for social partner representation.  

Amendments  22,  25.  The  requirement  to  retain  this  level  of  detail  in  records  of  checks 
appears  disproportionate.  Likewise,  requiring  a  balance  in  the  intensity  of  checks  between 
locations appears too prescriptive. 

Amendment  33.  Mutual  assistance  between  Member  States  in  imposing  penalties  for 
infringements  detected  has  been  replaced  by  the  introduction  of  extraterritoriality  for 
sanctions in the sister proposal on driving times and rest periods. 

Amendment  38.  The  Commission  should  not  be  bound  to  submit  a  proposal  to  harmonise 
sanctions, in advance of the outcome of its report on sanctions. 

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CONCLUSION 

While it would have preferred the inclusion of enforcement of working time rules, a common 
list  of  serious  infringements  and  an  earlier  increase  in  minimum  checking  levels,  the 
Commission considers that the common position adopted on 9th December 2004 by qualified 
majority largely follows the aims and approach of its proposal and so can support it. 

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