Opinion of the Commission pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for 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) 3821/85 and (EC) No 2135/98 amending the proposal of the Commission pursuant to Article 250 (2) of the EC Treaty
Date: 2005-06-27
Institutions: European Commission
Subjects: AETR agreement, approximation of laws, international transport, occupational safety, road transport, social legislation, working conditions

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 27.06.2005 
COM(2005) 0301 final 

2001/0241 (COD) 

OPINION OF THE COMMISSION 

pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, 
on the European Parliament's amendments 
to the Council's common position regarding the  
proposal for 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) 3821/85 and (EC) No 2135/98 

AMENDING THE PROPOSAL OF THE COMMISSION 
pursuant to Article 250 (2) of the EC Treaty 

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2001/0241 (COD) 

OPINION OF THE COMMISSION 

pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, 
on the European Parliament's amendments 
to the Council's common position regarding the  
proposal for 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) 3821/85 and (EC) No 2135/98 

1. 

INTRODUCTION 

Article 251(2), third subparagraph, point (c) of the EC Treaty provides that the Commission is 
to  deliver  an  opinion  on  the  amendments  proposed  by  the  European  Parliament  at  second 
reading.  The  Commission  sets  out  its  opinion  below  on  the  43  amendments  proposed  by 
Parliament.  

2. 

BACKGROUND 

Date of transmission of the proposal to the European Parliament and to 
the Council  

(document COM(2001)573 final - 2001/0241(COD)) 

12 October 2001

Date of the opinion of the European Economic and Social Committee 

29 May 2001

Date of the opinion of the European Parliament following first reading 

14 January 2003

Date  of 
COM(2003)0490 

transmission  of 

the  amended  proposal  document 

11 August 2003

Date of adoption of the Common Position by unanimity 

9 December 2004

Date of adoption of the resolution at second reading by the European 
Parliament comprising 43 amendments to the Common Position 

13 April 2005

3. 

PURPOSE OF THE PROPOSAL 

The Commission proposal seeks to simplify, clarify and update the rules contained in Council 
Regulation  (EEC)  3820/85  of  31  December  19851  on  breaks  and  rest  periods  for  drivers  of 

1 OJ L 370, 31.12.1985, p.1 

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vehicles, as they are complex, interpreted and implemented differently in Member States, and 
need to reflect the considerable changes in the road transport sector over the past 20 years.  

In terms of simplification, it replaces the complex compensation system for reduced daily and 
weekly rest periods and minimises the numerous special arrangements for particular sectors. 
Clarification  is  improved  by  adding  a  considerable  number  of  new  definitions  as  well  as 
establishing a committee to look at contentious issues, while exemptions and derogations are 
updated  and  made  more  focused,  to  reflect  the  increasing  private  sector  provision  of  public 
services and to limit abuse. Better enforcement is promoted by the introduction of the concept 
of  extraterritoriality  for  sanctions,  presumption  of  employer  liability  and  co-liability  for  the 
whole transport chain.  

4. 

OPINION  OF  THE  COMMISSION  ON  THE  AMENDMENTS  BY  THE  EUROPEAN 
PARLIAMENT 

4.1. 

Amendments accepted by the Commission 

Overall, the Commission can accept 14 amendments out of a total of 43. Three amendments 
are acceptable as they stand: 14, 33 and 76; one amendment - 45 - is acceptable in part; ten 
amendments are acceptable in principle or subject to redrafting: 1, 3, 5, 7, 9, 10, 15, 26, 38 
and 43.  

4.1.1 Amendments accepted subject to redrafting  

Amendment  1  calls  upon  the  AETR  signatory  states  and  Community  to  align  the  AETR 
agreement with the new Regulation as soon as possible. While the Commission agrees with 
this objective,  the  recital  should not prejudice the  respective competence of the  Community 
and the Member States. 

Recital 8.  

“(8) 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.  It  is  desirable  to  amend  the  AETR  so  as  to  bring  it  into  line  with  the 
provisions of this Regulation.” 

Amendment 7 indicates that enforcement of the fortnightly driving time provision should be 
checkable  at  the  roadside.  This  is  already  implicitly  covered  in  Recital  14.  However  direct 
reference  to  a  change  in  Regulation  (EEC)  3821/85  is  desirable.  The  Commission  prefers  a 
staged approach to a 28-day check at the roadside, which should be reflected in the text, as 
follows:  

Recital 31(b) (new) 

“(31b)  Experience  indicates  that  compliance  with  the  provisions  of  this  Regulation,  in 
particular  the  specified  maximum  driving  time  over  a  two-week  period  and  the  reduced 
weekly  rest  compensation  arrangements,  cannot  be  enforced  unless  proper  and  effective 
supervision is brought to bear in roadside checks at least in relation to the whole of the period 

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concerned;  drivers  should  have  at  their  disposal  at  least  15  days’  records,  and  after  1 
January 2008, at least 28 days’ records” 

Amendment 26 sets out a definition of ‘driving time’. The Commission would prefer a less 
complex definition, which simply links this period of time with what is recorded as ‘driving’ 
by the tachograph, namely: 

Article 4, point (ia) (new) 

“.  (ia)  "driving  time"  means  the  duration  of  the  driving  activity  recorded  by  the  recording 
equipment defined in Annex 1 and Annex 1B of Council Regulation (EEC) no. 3821/85.” 

4.1.2 Amendments accepted in principle 

Amendment  3.  While  the  Commission  accepts  that  efforts  should  be  made  to  ensure  a 
clarification  and  uniform  implementation  of  the  rules  through  the  proposed  comitology 
committee, a definitive uniform interpretation could only be achieved through the European 
Court of Justice. The amended text reads: 

Recital 13 

“(13) Full definitions of all key terms should be given in order to render interpretation easier 
and ensure that this Regulation is applied in a uniform manner. In addition, efforts should be 
made  to  ensure  uniform  […]  implementation  of  this  Regulation  by  national  supervisory 
authorities  through  the  committee  set  up  under  Article  24  as  provided  in  Article  25.  The 
definition of "week" provided in this Regulation should not prevent drivers from starting work 
on any day of the week.” 

Amendment  5  now  provides  a  specific  recital  for  transitional  measures  in  Article  28, 
paragraph  2  of  the  Council’s  common  position  concerning  common  minimum  age  limit 
provisions for drivers. The recital should refer only to the minimum age for drivers and not to 
driver’s mates.  

Recital 29(a) 

“(29a)  Since  the  provisions  concerning  the  minimum  ages  of  drivers  have  now  been  laid 
down in Article 5 of Directive 2003/59/EC1 and must be transposed by 2009, only transitional 
provisions concerning the minimum age of drivers […] are required in this Regulation.” 

Amendment  9  introduces  a  direct  reference  to  the  current  Directive  on  minimum 
enforcement  levels  for  this  Regulation  and  indicates  the  Parliament’s  preferred  shorter 
timeframe for the proposed increase in the percentage of checks to be performed as well as 
the  need  to  include  enforcement  of  working  time  rules.  The  Commission  could  accept 
inclusion  of  a  reference  to  the  enforcement  directive,  with  the  proposed  increase  in 
percentages and a reference to enforcement of working time, but would prefer to keep to the 
less ambitious but achievable Council deadlines. 

Recital 31 

“(31d) Article 2(2) of Directive 88/599/EEC stipulates that at least 1% of working days must 
be checked every year, of which not less than 15% are to be checked at the roadside and not 
less than 25% at the premises of undertakings. In view of numerous past infringements, the 
percentage  of  days  checked  should  be  progressively  raised  to  at  least  2%  from  1 January 

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2009,  3%  from  1  January  2011  and  4%  from  1  January  2013.  At  least  30%  of  all  working 
days  checked  should  be  checked  at  the  roadside  and  at  least  50%  at  the  premises  of 
undertakings,  as  such  checks  are  the  only  means  of  ascertaining  a  driver's  overall  working 
pattern.  In  addition,  Directive  88/599/EEC  should  be  amended  so  that  the  checks  are  also 
carried out concerning Directive 2002/15/EC.” 

Amendment  10  advocates  that  the  provisions  regarding  digital  tachograph  and  its 
introduction should be coordinated with those of the proposed Regulation. The Commission 
shares this aim and considers that the current introduction date of 5 August 2005 will ensure 
that digital tachograph equipped vehicles are on the market in time to be used in conjunction 
with the proposed rules. 

Recital 31(e) (new) 

“(31e)  The  implementation  of  provisions  relating  to  digital  tachographs  should  be  carried 
out  in  such  a  way  as  to  complement  the  implementation  of  this  Regulation  in  order  to 
achieve  optimal effectiveness  in  monitoring and enforcing social legislation  relating  to  road 
transport.” 

Amendment 15 exempts tractors with a maximum speed of 40-km per hour but links them to 
a definition in Article 4. The Commission can accept that agricultural or forestry tractors with 
this  maximum  speed  limit  are  exempt,  but  not  the  more  generalised  exemption  of  traction 
units that a linkage to the definition in Article 4 entails.  

Article 3, point (ba) (new) 

“(ba)  agricultural  or  forestry  tractors  with  a  maximum  authorised  speed  not  exceeding  40 
kilometres per hour;”; 

Amendment 38 removes the national derogation for specialised vehicles transporting circus 
and  funfair  equipment.  The  Commission  could  accept  this  in  principle,  on  the  basis  that  a 
general exemption might be more appropriate than a national derogation for such vehicles, as 
some  may  cross  national  frontiers  in  the  course  of  their  work.  It  notes  however  that 
Parliament did not provide a general exemption and hence wishes to remove any exemption 
or  derogation  from  these  vehicles.  The  Commission  would  be  opposed  to  this  approach  on 
practical  grounds,  as  carriage  by  road  by  these  specialised  vehicles  is  an  ancillary  activity; 
such  transport  must  of  necessity  be  relatively  slow  and  will  not  be  subject  to  competitive 
pressure. The Commission therefore reinserts this category as a general exemption: 

Article 3, point (ba) (new) 

“(ba) specialised vehicles transporting circus and fun-fair equipment;” 

Amendment  43  stipulates  that  Member  States  will  lay  down  a  common  range  of 
infringements based on a Commission proposal, which will be categorised according to their 
gravity. Member States will then lay down penalties for such infringements. The Commission 
agrees with this objective but considers that the proposed procedure is not in conformity with 
the  institutional  system  of  the  Treaty.  The  Commission  is  of  the  view  that,  instead,  the 
common  range  of  infringements,  and  their  categorisation,  should  be  laid  down  by  the 
Commission in accordance with the procedure provided in Article 24  

Article 19, paragraph 1 

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“1. The Commission, acting in accordance with the procedure referred to in Article 24, 
shall lay down rules on a common range of infringements of this Regulation and Regulation 
(EEC)  No 3821/85,  divided  into  categories  according  to  their  gravity.  The  Member  States 
shall  provide  for  penalties  for  such  infringements  and  shall  take  all  measures  necessary  to 
ensure that they are implemented. Those penalties shall be effective, proportionate, dissuasive 
and  non-discriminatory.  No  infringement  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  paragraph  of  Article  29.  The  Commission  shall  inform  Member  States 
accordingly.” 

4.1.3 Amendment accepted in part 

Amendment 45 calls on the Commission firstly to support dialogue between Member States 
concerning national interpretation and application of the Regulation and secondly to submit a 
proposal  on  uniform  rules  for  the  interpretation  and  application  of  the  Regulation.  The 
Commission  can  accept  the  first  part  of  the  amendment,  as  this  dialogue  will  be  within  the 
framework of the new comitology committee to be established. However it will not commit 
itself  to  proposing  a  uniform  interpretation  of  the  Regulation,  as  this  would  restrict  the 
Commission’s  right  of  initiative  under  the  Treaty.  In  accordance  with  Article  25,  this  task 
may be undertaken by the committee set up under Article 24.  

Article 22, paragraph 3(a) (new) 

“3a. The Commission shall support dialogue between Member States concerning the national 
interpretation and implementation of this Regulation.” 

4.2. 

Amendments rejected by the Commission 

29 amendments are rejected: 2, 4, 6, 8, 12, 13, 17, 18, 21, 23, 24, 25, 28, 29, 30, 31, 32, 34, 
35, 36, 37, 39, 40, 42, 44, 52, 54, 67 and 69.  

4.2.1 General Exemptions and National Derogations 

In terms of Amendments 4, 17, 21, 36, 37, 39 and 69 the Commission maintains its view that 
a  more  focussed  approach  to  exemptions  and  derogations  is  required.  Humanitarian  aid 
(amendment 17) is too broad a concept and can be subcontracted to commercial operators; 
privatised  utilities  and  services,  or  those  services  in  which  privatised  utilities  compete 
continue to be subject to competitive pressures (amendments 4, 37 and 69).  

In  terms  of  the  national  derogation  in  Article  13(1)(d)  concerning  vehicles  used  by  drivers 
where driving is not their principle activity, the Commission opposes amendment 21 which 
makes  a  general  exemption  for  some  vehicle  combinations  covered  by  this  derogation  and 
raises the exempted distance for such combinations to 100 km. The Commission considers the 
provision  in  the  common  position  sufficient.  The  Commission  also  rejects  amendment  36 
which  removes  the  weight  limitation  of  7.5  tonnes  in  this  national  derogation,  as  drivers  of 
vehicles  above  7.5  tonnes  need  to  be  in  possession  of  a  professional  Heavy  Goods  Vehicle 
licence.  Such  larger  vehicles  would  normally  only  be  used  for  professional  purposes  and 
driven by professional drivers.  

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Amendment 39 which allows a national derogation concerning the carriage of live animals to 
local markets is already covered in Article 13(1)(b) where a 100-km radius is permitted – the 
Commission considers that the Council’s derogation should suffice. 

4.2.2 Rest and Break Provisions 

While  in  principle  the  Commission  might  support  amendments  24  and  29  raising  regular 
daily  rest  to  12  hours,  in  practice  it  recognises  that  the  Council’s  common  position  is  a 
delicate  compromise  between  Member  States  and  for  this  reason  will  reject  these  two 
amendments. As for amendment 30, it acknowledges the road safety concerns of permitting 
drivers of all passenger transport vehicles to drive for 12 consecutive days without a weekly 
rest.  In  terms  of  rest  taken  in  a  stationary  vehicle  (amendment  31),  the  Commission 
continues to consider that a reduced weekly rest period may be taken in a suitably equipped 
vehicle, as vehicle design has improved considerably over the past 20 years. 

The  Commission  rejects  amendment  28  on  breaks  as  this  does  not  address  the  issue  of 
potential abuse of the split break periods. 

4.2.3 Amendments raising issues of clarity and practicality 

The  Commission  rejects  a  number  of  amendments  that  render  the  text  more  complex,  less 
clear or which in practice raise enforcement difficulties.  

Amendments  18,  34  and  35  are  unnecessary,  the  first  because  the  vehicles  exempted  are 
already  out  of  scope,  the  second  because  the  provision  is  already  in  force  in  Directive 
2002/15/EC  and  the  final  amendment  because  Member  States  are  not  given  to  overriding 
collective agreements within their national road transport sector. 

Amendments 2, 12 and 13 apply the Regulation to vehicles registered in third countries not 
party to the AETR agreement, for that part of their journey within the Union. While initially 
favouring  this  solution  following  the  Parliament’s  first  reading,  the  Commission  recognises 
that 

•  this  is  in  contradiction  with  the  AETR  agreement  to  which  all  25  Member  States  have 

subscribed; 

•  within  the  context  of  the  common  position  text,  this  would  create  a  discrepancy:  for  the 
same journey - Community registered vehicles would be subject to AETR rules while non-
AETR third country registered vehicles would be subject to the Regulation; and  

•  this could potentially mean that should the journey of a non-AETR third country registered 
vehicle  pass  through  an  AETR  third  country  to  the  Union,  both  AETR  rules  and  the 
Regulation would be applied to one journey. 

The Commission therefore rejects these amendments for the sake of clarity and simplicity. It 
would  point  out  however  that  it  accepts  the  principle  of  Amendment  1  to  align  the  AETR 
agreement as soon as possible with the new Regulation. 

Amendment  44  reduces  vehicle  immobilisation  to  a  temporary  sanction  without  clearly 
harmonising  the  circumstances  under  which  this  measure  can  be  taken  and  when  it  should 
cease. For this reason the Commission rejects the amendment. 

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Several  amendments  raise  definition  difficulties.  Amendment  23  revises  the  definition  of  a 
‘driver’  but  implies  that  proof  of  purpose  may  be  required.  The  Commission  prefers  the 
wider, more inclusive concept of availability. Amendment 25 reintroduces the link between 
reduced  weekly  rest  period  and  where  it  is  taken,  indicating  that  long  distance  drivers  may 
take their compensating rest within three weeks. Firstly, there is no definition of long distance 
drivers and secondly, in road safety terms it could be argued that long distance drivers should 
not be able to postpone any compensating rest for a prolonged period. 

Several amendments raise practical difficulties. Amendment 6 advocates a restriction of the 
period  of  transition  of  the  European  fleet  from  analogue  to  digital  tachograph  use.  While 
laudable,  this  cannot  in  practice  be  carried  out  as  some  older  vehicles  in  national  transport 
cannot be equipped with the digital tachograph. Amendment 42 requires the Commission to 
report  on  the  use  of  exemption  clauses.  This  will  in  practice  be  difficult  to  achieve  as  the 
provisions do not always target a specific interest group with identifiable representatives in all 
Member States. However the Commission believes that sufficient time has already been given 
for those directly concerned to make their views known and for Member States to carry out 
consultations. It does not envisage raising the issue again in a separate proposal. Amendment 
67 redefines multi-manning by allowing the presence of one man only on board for both the 
first  and last  hours of  a journey. This seems firstly to be a contradiction in terms, but more 
important, it means that an inspector has no obvious means of proving that a single driver was 
accompanied  during  the  previous  21  hour  period  and  could  therefore  benefit  from  the  more 
liberal driving time and rest period rules in place for this arrangement. Amendment 32 bans 
remuneration  based  on  distance  travelled  or  amount  of  goods  transported.  This  ban  would 
result  in  too  rigid  a  form  of  wage  or  bonus  regime  and  unnecessarily  restrict  the  sector’s 
flexibility. The qualification of not endangering road safety is sufficient. 

4.2.4 Digital tachograph introduction amendments  

In view of the advanced state of preparations in the Member States, the Commission does not 
consider that there is justification for the Parliament’s proposal to delay the obligation to fit 
digital tachographs to now vehicles until 5 August 2006 or to delay the obligation for vehicles 
entering into service for the first time until 5 August 2007. Nor does it consider that there is 
justification  for  granting  an  additional  12  months  to  Member  States  to  issue  the  necessary 
driver cards. It therefore rejects amendments 52 and 54.  

4.2.5 Provisions more appropriate in the proposed enforcement Directive 

Amendments  8  and  40  go  into  detail  at  length  about  provisions  within  the  proposed 
enforcement Directive and include possible amendments to the Council’s common position on 
the Directive. The Commission considers that such amendments are more appropriate for the 
Directive, could cause confusion if now placed in the Regulation, and therefore rejects these 
two amendments. 

5. 

CONCLUSION 

Pursuant to Article 250(2) of the EC Treaty, the Commission amends its proposal as set out 
above. 

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