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 Regulation of the European Parliament and of the Council on the harmonisation of certain social legislation relating to road transport and amending Council Regulation (EEC) 3821/85 on recording equipment in road transport
Date: 2004-12-14
Institutions: European Commission
Subjects: driving period, labour law, rest period, road transport, speed control, transport regulations, transport staff

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 14.12.2004 
COM(2004) 817 final 

2001/0241 (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 regulation of the European 
Parliament and of the Council on the harmonisation of certain social legislation relating 
to road transport and amending Council Regulation (EEC) 3821/85 on recording 
equipment in road transport 

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2001/0241 (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 regulation of the European 
Parliament and of the Council on the harmonisation of certain social legislation relating 
to road transport and amending Council Regulation (EEC) 3821/85 on recording 
equipment in road transport 

1- 

BACKGROUND 

Date of transmission of the proposal to the EP and the Council 
(document COM(2001) 573 final – C5–0485/2001 - 2001/0241(COD): 

12 October 2001 

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

29 May 2002 

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

14 January 2003 

Date of transmission of the amended proposal document COM(2003)0490 
– C5-0394/2003): 

11 August 2003 

Date of adoption of the common position: 

11 June 2004 

2- 

OBJECTIVE OF THE COMMISSION PROPOSAL 

Council  Regulation  (EEC)  3820/85  of  31  December  19851  sets  out  rules  for  driving  times, 
breaks  and  rest  periods  for  drivers  of  vehicles,  which  come  within  the  Regulation’s  scope, 
with  the  aim  of  harmonising  the  conditions  of  competition  in  inland  transport,  as  well  as 
improving road safety and driver’s working conditions. Given the complex nature of the rules, 
the  differences  in  interpretation  and  implementation  between  Member  States,  and  the 
considerable  changes  in  the  road  transport  sector  over  the  subsequent  15  years,  the 
Commission adopted a proposal for a new Regulation to simplify, clarify and update the rules. 
In terms of simplification, it replaced the complex compensation system for reduced daily and 
weekly rest periods and minimised the numerous special arrangements for particular sectors. 
Clarification  was  improved  by  adding  a  considerable  number  of  new  definitions  as  well  as 
establishing  a  committee  to  look  at  contentious  issues,  while  exemptions  and  derogations 
were  updated  and  made  more  focused,  to  reflect  the  increasing  private  sector  provision  of 
public  services  and  to  limit  abuse.  Better  enforcement  was  promoted  by  the  introduction  of 
the  concept  of  extraterritoriality  for  sanctions,  presumption  of  employer  liability  and  co-
liability for the whole transport chain  

1 OJ L 370, 31.12.1985, p.1 

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The  Commission  also  proposed  that  the  rules  be  based  on  a  ‘flexible’  week  rather  than  a 
calendar  week.  However,  the  subsequent  adoption  of  the  sectoral  working  time  Directive, 
Directive  2002/15/EC2,  based  on  a  calendar  week,  highlighted  the  need  for  a  coherent 
approach. The Commission heeded Parliament’s opinion on the proposal, which advocated a 
return to a calendar week method of calculation and to a large part of the current Regulation’s 
flexibilities.  Its  amended  proposal  incorporated  the  majority  of  Parliament’s  amendments, 
reinserting a measure of flexibility, such as reintroducing limited compensation arrangements 
for weekly rest, while still seeking to maintain a balance with enforceability of the rules. To 
facilitate the debate in Council, the amended proposal also took on board several constructive 
points where a consensus in Council discussions was apparent, such as updating of the digital 
tachograph provisions in the sister Regulation, Regulation (EEC) 3821/853. At the same time 
in  this  Regulation  and  in  response  to  Parliament,  it  extended  the  number  of  preceding  days 
which enforcement staff may check on the road from 8 to 15, thus allowing greater discretion 
to enforcement at the roadside.  

3- 

COMMENTS ON THE COMMON POSITION 

The  Council  made  some  general  changes  relative  to  the  Commission's  proposal  that  are 
acceptable because they ensure its aims are met. 

The first concerns the insertion of an Article postponing the date for the introduction of the 
digital tachograph until 5 August 2005. The Council considered that this would provide legal 
certainty,  given  that  no  vehicles  equipped  with  such  tachographs  would  be  available  by  the 
current legal deadline of 5 August 2004. The Commission could accept this provision, but to 
guarantee  complete  legal  certainty,  the  text  should  specify  that  the  date  of  5  August  2005 
replaces that of 5 August 2004 as from that latter date. 

Secondly,  the  common  position  sets  out  a  compromise  text  on  a  daily  and  weekly  rest 
package.  Compared  with  the  current  Regulation,  this  text  balances  a  more  restrictive  split 
daily  rest  provision  of  3  hours  plus  9  hours,  with  the  elimination  of  compensation 
arrangements for a reduction in daily rest from 11 hours to 9 hours three times between any 
two weekly rest periods. For weekly rest, the current compensation arrangements by the end 
of a three week period are maintained, but with the possibility of a longer period for checking 
on the road (up to 15 previous days until 1.1.2008 and up to 28 days thereafter). In addition, 
every  two  consecutive  weeks,  a  driver  must  take  a  normal  weekly  rest  of  at  least  45  hours. 
The common position also sets out a more detailed table on breaks.  

The  Commission  welcomes  the  simplicity  of  the  new  split  daily  rest,  but  finds  the 
arrangement  for  reduced  daily  rest  a  retrograde  step  in  terms  of  road  safety  and  working 
conditions. While it accepts the continuation of the lengthy compensation period for weekly 
rest, it considers the new provision on a minimum regular weekly rest requirement over a two 
week period an advance, with the option of checking up to 28 days records at the roadside an 
advantage for enforcement staff.  

Thirdly, the common position incorporates the majority of Article 9 on offences and sanctions 
from  the  sister  proposal  on  road  transport  enforcement  for  which  a  political  agreement  was 

2 OJ L 80, 23.3.2002, p.35 
3 OJ L 370, 31.12.1985, p.8 

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also  obtained  on  11  June  2004  in  the  Transport  Council,  although  the  Commission  is 
disappointed that the list of common serious offences has been omitted. These provisions will 
therefore have direct effect.  

Finally, while the list of national derogations has been slightly extended, overall the majority 
of  general  exemptions  and  national  derogations  in  the  common  position  remain  more 
restrictive than in Regulation (EEC) 3820/85. 

The  Commission  accepted  wholly  or  in  part  forty-seven  of  the  sixty-nine  amendments 
proposed by the European Parliament at its first reading. Of these, the Council has included 
thirty-four, either literally or in principle, in its common position. 

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. 

Amendments  1,  33,  37,  44.  The  common  position  returns  to  the  calendar  week  system  of 
calculation. 

Amendments  2-5,  7,  12(part),  18(part),  25-27,  30,  41,  43,  51(part),  52,  53,  62,  64(part),  65 
and 66. All these amendments  bring useful clarifications to the text and are reflected in the 
common position. 

Amendments  17  and  54.  The  addition  of  a  general  exemption  for  historic  vehicles  used  for 
non-commercial purposes appears logical and is included in the common position. Likewise 
local postal services could continue to be excluded, on the understanding that driving is not 
the main activity. 

Amendments  21,  34,  47  and  107(part).  These  amendments  introduce  a  greater  degree  of 
flexibility for the industry. 

Amendments 31, 32, 45. These amendments form part of the compromise package on daily 
and weekly rest. 

Amendment  48.  This  amendment  introduces  co-liability  for  the  entire  transport  chain.  The 
common  position  in  Article  10(4)  amplifies  the  list  of  those  potentially  co-liable  and 
concentrates on contractually agreed time schedules.  

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

Amendments 14 -16 These amendments seek to extend the Regulation’s scope to courier and 
express delivery services as well as to third country registered vehicles for the whole of their 
journey  within  the  Union.  While  the  Commission  could  see  merit  in  both  cases,  there  was 
little support in Council for an extension to delivery services, while the issue of the scope of 
the Regulation and AETR is handled in a different way in the common position. 

Amendments  28  and  29.  These  amendments  clarify  the  definition  of  ‘driver’  and  add  a 
definition for driving time. The Council preferred the original broader Commission definition 

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of driver and considered that a definition of ‘driving time’ was contentious and unnecessary. 
The common position reverts to the original Commission proposal.  

Amendment 78 part. The amendment reintroduces the two types of reduced weekly rest (36 
hours at base; 24 hours away from base) with compensation for long distance drivers within 
three weeks. The Commission accepted the reintroduction of the two types of reduced weekly 
rest along with earlier compensation for reduced weekly rest. As part of the compromise on 
weekly  rest,  the  common  position  returns  to  Regulation  (EEC)  3820/85  in  terms  of 
compensation arrangements, while avoiding the two types of reduced weekly rest. 

Amendment 42 part. The amendment reintroduces the concept of a split daily rest, which the 
Commission  accepted  to  facilitate  greater  flexibility  for  the  industry.  The  common  position 
also includes split daily rest, but not in the context provided by this amendment. 

Amendments  9-11,  60,  63  and  70.  These  amendments  sought  to  introduce  enforcement 
measures for the provisions of this Regulation. The Commission took them into account when 
formulating  its  proposal  on  enforcement4  and  also  (for  amendments  9  and  70(a))  its 
amendment  to  Regulation  (EEC)  3821/85  to  allow  checks  of  the  previous  15  days  at  the 
roadside.  The  common  position  more  accurately  reflects  the  intention  of  these  latter  two 
amendments  by  allowing  checks  at  the  roadside  to  include  up  to  28  previous  days  from 
1.1.2008.  

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

Amendment  20.  The  amendment  returns  to  the  broader  general  exemption  for  specialised 
vehicles for medical purposes and is included in the common position. 

Amendments  23,  24  and  58.  The  first  two  amendments  reinsert  general  exemptions  for 
vehicles  for  milk  collection  and  delivery  from  farms  as  well  as  the  current  Regulation’s 
extensive list of public utility vehicles. Amendment 58 reinserts the transport of slaughtered 
animals/slaughter waste, now as a national derogation. The common position confirms all as 
optional  national  derogations  (Art.  13(1)  (l),  (h))  and  (n)),  while  maintaining  the 
Commission’s reduced list of public utility vehicles.  

Amendment  49.  This  replaces  a  transport  undertaking’s  defence  against  liability  for 
infringements with two further requirements for record keeping and an obligation to verify a 
driver’s  total  working  time.  The  common  position  has  incorporated  the  substance  of  these 
additions in Article 19(bis).  

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

Amendment  6.  This  obliges  roadside  checks  to  cover  the  current  day  and  the  previous  27 
days. The common position continues to allow a measure of discretion to enforcement staff, 
but gives them the option from 1.1.2008 onwards of checking the previous 28 days. 

Amendment  8  This  amendment  seeks  to  introduce  a  deadline  for  retrofitting  all  vehicles  in 
operation with a digital tachograph. However not all these vehicles are so constructed as to be 
able to be fitted with a digital tachograph.  

4 OJ L 111, 17.4.2004, p.75 

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Amendment 13. This amendment seeks to include the maximum weekly working time limits 
of  the  sectoral  working  time  Directive,  Directive  2002/15/EC,  within  the  body  of  the 
Regulation.  The  common  position  does  not  include  the  form  of  this  amendment,  but 
nevertheless in Art. 6(2) it retains the substance, specifying that the maximum working time 
limit may not be exceeded. 

Amendment 19. This introduces a general exemption for vehicles used for humanitarian aid.  

Amendment  22.  This  exempts  vehicles  not  exceeding  3.5  tonnes  used  for  non-commercial 
purposes. However all vehicles not exceeding 3.5 tonnes are already excluded from the scope 
of the proposal. 

Amendment  35.  This  reinserts  all  of  Article  5  of  Regulation  (EEC)  3820/85  concerning 
minimum  ages  of  drivers  of  large  goods  or  passenger  vehicles.  However  these  provisions 
have already been taken up in Art. 5 of Directive 2003/59/EC5.  

Amendment  39.  The  amendment  limits  the  obligation  for  the  driver  to  record  driving  time 
undertaken  on  vehicles  outside  the  scope  of  the  Regulation  to  urban  passenger  transport 
vehicles. The common position includes driving on all commercial vehicles outside the scope, 
but stipulates that this driving be recorded as ‘other work.’  

Amendment 83. This proposes a break of 30 minutes every four and a half hours, which can 
be divided into two periods of 15 minutes. The common position retains the 45 minute break 
but does allow this break to be split into at least 15 minute intervals.  

Amendments  55-57,  59.  These  amendments  seek  to  reinsert  as  national  derogations  certain 
vehicle  groups  that  the  Commission  proposal  removed.  The  common  position  has  not 
included them.  

Amendments 67 and 69. These amendments introduce legal provisions, which run counter to 
the comitology rules.  

Amendment  68.  This  amendment  calls  on  the  Commission  to  submit  a  proposal  for  the 
uniform  interpretation  of  these  rules.  It  is  through  the  new  committee  that  a  common 
approach to these provisions will be achieved. 

5- 

CONCLUSION 

The  Commission  considers  that  the  common  position  unanimously  adopted  on  9  December 
2004 does not alter the aims and approach of its proposal and so can support it. 

5 OJ L 226, 10.9.2003, p.4 

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