Opinion of the European Economic and Social Committee on Road transport — working time of self-employed drivers
Date: 2008-07-09
Institutions: European Economic and Social Committee
Subjects: ESC opinion, arrangement of working time, road safety, road transport, self-employed person, transport infrastructure, wage earner, working time

3.2.2009

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Official Journal of the European Union

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Opinion of the European Economic and Social Committee on ‘Road transport — working time of
self-employed drivers’

(2009/C 27/12)

On 20 November 2007 the European Economic and Social Committee decided to draw up an additional
opinion, under Rule 29 A of the Implementing provisions of its Rules of Procedure, on:

Road transport — working time of self-employed drivers.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for
preparing the Committee's work on the subject, adopted its opinion on 5 June 2008. The rapporteur was
Mr Chagas (1), replaced by Mr Curtis.

At its 446th plenary session, held on 9 and 10 July 2008 (meeting of 9 July 2008), the European Economic
and Social Committee adopted the following opinion by 121 votes to 14, with 6 abstentions.

1. Conclusions

1.7
The EESC believes that the inclusion of self-employed
drivers in the scope of the directive must not result in them
being burdened with unnecessary administrative tasks.

1.1
The EESC believes that all self-employed drivers should
be included in the scope of Directive 2002/15/EC (as of
23 March 2009), as provided for by Article 2 thereof.

1.2
This requires Member States to have transposed the
directive correctly, particularly the definition of self-employed
driver.

2. Introduction

1.3
The EESC feels that inclusion of these drivers is necessary
in order to promote road safety, foster fair competition and
improve the working conditions of mobile and self-employed
workers — particularly their physical and mental health. It is
understood the general administrative tasks as defined in the
directive (Article 3, a-2) are not included in the definition of
working time.

implementation of

1.4
The EESC considers that an internal market in European
road transport requires a level playing field, based on the effec-
tive practical
the
industry. Making a distinction as regards the implementation of
legislation on working time between mobile and self-employed
workers helps to create unfair competition. For this reason the
EESC cannot accept
the option of only including ‘false
self-employed’ drivers in the scope of the directive.

legislation for

social

(TEN/290) (2),

2.1
The EESC has already done extensive work on European
road safety policy and has acquired considerable expertise in
this area.
In its most recent own-initiative opinion, entitled
‘European Road Safety Policy and Professional Drivers — Safe
and secured parking places’
the Committee
addressed the important
issue of rest areas for professional
drivers, as part of road infrastructure policy. However, another
very important issue which complements the opinion on safe
and secure parking is the working time of self-employed drivers
in road transport. The different economic, social and safety
aspects have not yet been addressed adequately at European
level. The present additional opinion has also been drawn up in
response to the report from the Commission to the Council and
the European Parliament on the consequences of the exclusion
scope of Directive
of
2002/15/EC of the European Parliament and of the Council of
11 March 2002 on the organisation of the working time of
persons
activities
(COM(2007) 266 final).

performing mobile

self-employed

from the

transport

drivers

road

To counter the potential difficulties in implementing the
1.5
inclusion of
these drivers the EESC recommends co-liability
between the various operators in the transport chain, as per the
regulation on driving time and rest periods.

The EESC points out

1.6
that promoting cooperation at
European level between the different national administrations is
essential if the directive is to be implemented effectively.

2.2
Directive 2002/15/EC establishes minimum requirements
in relation to the organisation of working time in order to
improve the health and safety protection of persons performing
mobile road transport activities, to improve road safety and to
align conditions of competition. The directive came into force
on 23 March 2002 and Member States had three years, until
23 March 2005, to implement its provisions in relation to
mobile workers. Article 2(1) of the directive states that its provi-
sions shall apply to self-employed drivers from 23 March 2009.
In the meantime, the Commission was to submit a report to the
Council and the European Parliament and then a legislative
proposal based on the report.

(1) Resigned member.

(2) OJ C 175 of 27.7.2007, pp. 88-90.

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As part of

the final conciliation agreement

2.3
reached
between the European Parliament and the Council on this direc-
tive, it was concluded that no later than two years before this
date, i.e. by 23 March 2007, the Commission should present a
to the European Parliament and the Council, which
report
would
exclusion of
analyse
self-employed drivers from the scope of the directive in respect
of road safety, conditions of competition, the structure of the
profession, and social aspects. The report should take into
account the circumstances in each Member State relating to the
structure of the transport industry and to the working environ-
ment of the road transport profession.

consequences

the

the

of

On the basis of

2.4
the Commission should
the report,
submit a proposal either (a) to set out the procedures for inclu-
sion of self-employed drivers who undertake purely national
transport activities and who face particular constraints; or
(b) not to include self-employed drivers within the scope of the
directive.

2.5
Article 7(2) of the directive also required the Commis-
sion to assess the consequences of the directive's night work
provisions and report on them by 23 March 2007 in the
context of the biennial report which it is obliged to provide on
the implementation of the directive.

3. The Commission report

3.1
According to the Commission, the report provides an
overview of the current state of implementation of the directive
by the Member States, addresses the potential consequences of
the exclusion of self-employed drivers from its scope and
assesses the consequences of its night work provisions.

3.2
The first conclusion is that most Member States did not
manage to transpose the directive within the three-year period
provided. The Commission does not, therefore, consider itself to
be in a position to issue its first biennial report, which was
scheduled for March 2007.

3.3 With regard to the consequences of the exclusion of
self-employed drivers,
the Commission recalls why it had
proposed including them: the regulation on driving time and
rest periods does not make any such distinction between
drivers; to prevent the risk of fragmentation through drivers
being encouraged to become ‘(false) self-employed’; and to
ensure that the aims of fair competition and improving road
safety and working conditions are applied across the entire
sector.

3.5 Whilst acknowledging that a ‘reduction in working time
could undoubtedly help reduce fatigue’, the external report also
concludes that ‘this could lead to higher levels of stress, as the
self-employed driver tries to achieve more in less time in order
to maintain his profitability, which in turn could lead to greater
fatigue and accidents’. The Commission appears to share this
view.

As regards the conditions for competition, the Commis-
3.6
sion accepts the report's conclusion that exclusion of
the
self-employed would encourage a continuation of the current
trend towards fragmentation and that this should not have a
impact on competition within the industry. By
significant
contrast,
in an increase in the cost
burden and a reduction in working time, so the competitive
advantage of the self-employed within the road freight industry
would be substantially reduced. The Commission thus appears
to favour the option of the directive applying only to ‘false’
self-employed drivers.

inclusion would result

The Commission also considers that

3.7
‘while continued
exclusion may be preferable for economic reasons, the potential
social impacts of exclusion or inclusion are less obvious. Exclu-
sion may not help to mitigate health and safety problems; on
the other hand inclusion may generate additional stress and
administrative workload for the self-employed while reducing
their income’.

3.8
By way of conclusion, the Commission suggests that
inclusion might impose greater emotional stress and financial
difficulty on the self-employed and be difficult to enforce and
therefore ineffective.

3.9 With regard to evaluating the consequences of the direc-
tive's provisions on night-working, the Commission concludes
that
the rules deserves more detailed
examination.

the enforcement of

4. General comments

4.1
The Committee takes note of the Commission report on
the consequences of the exclusion of self-employed drivers from
the directive on the working time of persons
the scope of
performing mobile road transport activities.

3.4
Based on the conclusions of a report drawn up by
external consultants, the Commission acknowledges that fatigue
and its consequences for road safety can affect all drivers,
whether they are self-employed or a mobile worker. Further-
more, the report also confirmed that self-employed drivers work
longer hours than mobile road transport workers and that both
categories work more than workers in other sectors.

The exclusion of self-employed workers from the scope
4.2
of the directive has, according to a number of stakeholders,
distorted competition in the road haulage industry. This recently
led the Committee to make the following request in its opinion
on the mid-term review of the transport White Paper (TEN/257
— rapporteur: Mr Barbadillo Lopez) (3):

(3) OJ C 161, 13.7.2007, p. 89.

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‘The social
legislation covering road transport must preserve
equal treatment for workers, whether they are employees or
self-employed and, therefore, Directive 15/2002 of 11 March
2002, on the organisation of working time of persons
performing mobile road transport activities must apply immedi-
ately to self-employed workers, without a transitional period,
since the aim of this Directive is to ensure road safety, to avoid
distortion of competition and to promote better working condi-
tions.’ (point 4.3.1.2)

Against

this backdrop,

4.3
to express
serious doubts as to the conclusions concerning road safety,
conditions for competition and the social aspects set out in the
study.

the EESC wishes

The Committee considers that

4.4
to
promote road safety, foster fair competition and improve the
working conditions of mobile and self-employed workers —
and particularly their physical and mental health — the scope
of Directive 2002/15/EC should include self-employed drivers.

there is a will

if

4.5
Excessive working hours are a major contributory factor
to fatigue and hence to falling asleep at the wheel and jeopar-
dising road safety. A level playing field is achieved when the
prices paid to sub-contractors by the major companies orga-
nising all aspects of the distribution and transport of goods
respect the social legislation concerning the industry, for mobile
workers as well as self-employed drivers.

4.6
Exclusion of self-employed drivers from the scope of
Directive 2002/15/EC does not necessarily cause additional
stress, because self-employed drivers will be subject to pressure
from contractors to lower their prices. They will have to work
longer hours in order to achieve the same profit margin, at the
expense of road safety, their health and the already delicate
balance between working and family life.

The EESC considers, however,

the inclusion of
4.7
self-employed drivers in the scope of Directive 2002/15/EC
requires the directive to have been correctly transposed, particu-
larly the definition of self-employed driver.

that

The Commission, as guardian of

4.8
the Treaty, should
ensure that the definition of ‘self-employed driver’, as stipulated
in Article 3(e) (4) of the directive, is correctly transposed by the
is the first condition that
Member States. Correct transposal

(4) Article 3(e) ‘“self-employed driver” shall mean anyone whose main
occupation is to transport passengers or goods by road for hire or
reward within the meaning of Community legislation under cover of
a Community licence or any other professional authorisation to
carry out the aforementioned transport, who is entitled to work for
himself and who is not tied to an employer by an employment
contract or by any other type of working hierarchical relationship,
who is free to organise the relevant working activities, whose income
depends directly on the profits made and who has the freedom to,
individually or through a cooperation between self-employed drivers,
have commercial relations with several customers.
For the purposes of this Directive, those drivers who do not satisfy
these criteria shall be subject to the same obligations and benefit from
the same rights as those provided for mobile workers by this Directive.’

needs to be met
phenomenon of ‘false self-employed’ drivers.

if a Member State wishes to combat

the

In addition, inclusion of self-employed drivers must be
4.9
to the directive concerning the
flanked by an amendment
the different players in the transport chain.
co-liability of
Article 10(4) of
the regulation on driving time and rest
periods (5) states that ‘Undertakings, consignors, freight forwar-
ders, tour operators, principal contractors, subcontractors and
driver employment agencies shall ensure that contractually
agreed transport time schedules respect this Regulation.’ This
co-liability should be extended to the implementation of legisla-
tion on working hours. This would help to establish a level
playing field for mobile workers and self-employed drivers:
when the latter find themselves working as sub-contractors, they
face pressure to lower their prices by working long hours. A
situation of unfair competition,
to the detriment of mobile
workers, can thus be avoided.

4.10
The EESC does not consider the study's conclusions on
the additional stress that including self-employed drivers in the
scope of the directive would entail to be reasonable. The defini-
tion of working time that the consultants have used is unclear.
If self-employed drivers are, in the same working hours, obliged
to carry out the administration and management of all of their
transport operations — tasks that mobile workers are not
obliged to carry out — additional stress will certainly ensue. If
they carry out the same type of activity as mobile workers in
the same working hours, it is hard to see why self-employed
drivers should suffer greater stress than mobile workers. It is
understood the general administrative tasks as defined in the
directive (Article 3, a-2) are not included in the definition of
working time.

4.11 Moreover,
if reducing working time helps to reduce
fatigue but creates stress, self-employed workers face an unenvi-
able choice. In the EESC's view, road safety is the number one
priority and fatigue as a consequence of long working hours,
including driving time, can cause road accidents, whether
drivers are mobile or self-employed.

Furthermore,

4.12
the study omits to state — and the
Commission agrees with its reasoning — that drivers' stress can
continue to exist and increase even if they are excluded from
the directive, because contractors will certainly raise this possibi-
lity in order to exert pressure on drivers to lower their prices.

The Commission highlights the fact that the Council
4.13
has not accepted any requirement whatsoever for minimal
systematic monitoring of the rules on working hours. Like the

(5) Regulation (EC) No 561/2006 of the European Parliament and of the
Council of 15 March 2006 on the harmonisation of certain social legis-
lation relating to road transport and amending Council Regulations
(EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regu-
lation (EEC) No 3820/85.

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Commission, the EESC regrets this situation but does not see it
as a reason for not adapting legislation to self-employed drivers.
The fact that monitoring the working time of self-employed
drivers is difficult does not mean that it should not be done.
The co-liability of the stakeholders in the transport chain in
implementing legislation could, therefore, play a significant role.
Should it become clear that contracts between the different
stakeholders in the transport chain are such that applying an
average duration of 48 hours is impossible, at least one feature
will be in place to protect the self-employed driver from exces-
sive driving time and working hours.

4.14
The EESC considers that an internal market in European
road transport requires a level playing field, based in particular
on the effective practical implementation of social legislation for
the industry. Making a distinction for the implementation of
legislation on working time between mobile and self-employed
workers simply helps to create unfair competition. For this
reason the EESC cannot accept the option of only including
‘false self-employed’ drivers in the scope of the directive.

4.15
The Committee also wishes to point out that a number
of States with different road transport operator market struc-
tures, such as Estonia (which has few self-employed drivers) and
Slovakia (where 70 % of drivers are self-employed) have chosen
to include self-employed drivers in Directive 2002/15/EC. This
being the case, the EESC fails to understand why the Commis-
sion wishes at all costs to keep self-employed drivers outside the
scope of Directive 2002/15/EC for economic reasons.

4.16
The Commission rightly acknowledges that the term
‘social aspects’ covers not only the health and safety and

Brussels, 9 July 2008.

working conditions of mobile and self-employed workers, but
also their remuneration and work-life balance.

According to the Commission,

‘exclusion offers them
4.17
the possibility of increased job control and higher income, with
the need to invest more time and energy to make it profitable’.

4.18
The EESC wishes to point out that the definition of
working time for self-employed workers is unclear and/or
assumes that general administrative tasks are not carried out
during working hours. In the latter example, the EESC fails to
understand why higher income for self-employed drivers should
be attributed to their exclusion from the working time directive.

4.19
The EESC points out that promoting cooperation at
European level between the different national administrations is
essential if the directive is to be implemented effectively.

4.20
The EESC believes that the inclusion of self-employed
drivers in the scope of the directive must not result in them
being burdened with unnecessary administrative tasks.

In the wake of this study, the Commission wishes to
4.21
carry out yet another — more detailed — impact assessment
before drawing up its legislative proposal. This assessment
should take account of new aspects such as the new regulation
on driving time and rest periods. Furthermore, the Commission
to uphold the exclusion of
intends this impact assessment
genuine self-employed drivers from the scope of the sector-
specific rules on working time. The EESC is not convinced of
the added value of another impact assessment.

The President

of the European Economic and Social Committee

Dimitris DIMITRIADIS