Commission staff working document - Executive summary of impact assessment - Proposal for a Directive of the European Parliament and of the Council amending Directive 2002/15/EC on the organisation of the working time of persons performing mobile road transport activities {COM(2008)650} {SEC(2008)2632}
Date: 2008-10-15
Institutions: European Commission
Subjects: arrangement of working time, occupational safety, road safety, road transport

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 15.10.2008 
SEC(2008) 2631 final 

COMMISSION STAFF WORKING DOCUMENT 
EXECUTIVE SUMMARY OF IMPACT ASSESSMENT 

Proposal for a directive of the European Parliament and of the Council amending 
Directive 2002/15/EC on the organisation of the working time of persons performing 
mobile road transport activities 

{COM(2008)650} 
{SEC(2008)2632} 

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1. 

INTRODUCTION 

This executive summary of the impact assessment report describes problems encountered with 
regard to the scope and enforcement of the legislation concerning persons performing mobile 
road transport activities and analyses the various policy options to deal with these problems. 

Directive 2002/15/EC1 establishes minimum requirements of working time of mobile workers 
in road transport in order to improve the health and safety protection, to improve road safety 
and  to  align  conditions  of  competition.  The  Directive  supplements  Regulation  (EC)  No 
561/20062 laying down rules on driving times and rest periods for drivers. 

As  part  of  the  conciliation  agreement  the  provisions  of  the  Directive  would  apply  from  23 
March 2009 to self-employed drivers once the Commission presents a report and a consequent 
legislative proposal based on the report (Article 2(1) of the Directive). 

The Commission report3 addressing potential consequences of the exclusion of self-employed 
drivers and assessing the night time provisions was presented on 23 May 2007. 

The report confirms that the balance of overall disadvantages and advantages of inclusion or 
non-inclusion  of  self-employed  drivers  within  the  scope  of  the  Directive  is  mixed  and 
indicates  the  need  for  an  in-depth  impact  assessment  of  the  issue.  Additionally,  the  report 
reveals a problem with effective and equitable enforcement of the rules. 

2. 

PROCEDURAL ISSUES  

The  impact  assessment  builds  on  various  studies  and  surveys  carried  out  during  2003-2008 
including  two  consultations  with  stakeholders  as  well  as  on  regular  contacts  with  Member 
States  and  social  partners.  It  reflects  the  stakeholders'  comments  as  well  as  contributions  of 
the Inter-services Steering Group established for the purpose of this impact assessment. 

The  majority  of  stakeholders  see  negative  and  positive  impacts.  On  one  hand  working  time 
rules  are  regarded  as  having  positive  impacts  on  health  and  safety,  working  conditions  and 
conditions  of  competition,  but  on  the  other  hand  they  bring  numerous  negative  side-effects 
such as loss of salary, shortage of drivers and increase in costs. 

Stakeholders highlighted problems related to the enforcement of the working time rules and 
indicated that the existing weak system of controls does not ensure full compliance and they 
advocate  for  clarity  of  the  scope  of  the  Directive,  effectiveness  of  enforcement,  better 
cooperation  between  national  authorities  and  prevention  of  the  phenomenon  of  'false'  self-
employed drivers. 

The Impact Assessment Board treated the draft Impact Assessment in its meeting on 16 April 
2008  and  gave  comments  to  improve  the  text  in  its  opinions  of  22  April  2008  and  26  June 
2008  after  a  resubmitted  Impact  Assessment.  The  main  comments  concerned  the  lack  of 
explanation  of  the  relation  of  the  specific  working  time  directive  with  other  applicable 

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OJ L 80, of 23.3.2002, p.35 
OJ L 102, of 11.4.2006, p.1 
COM(2007) 266 final 

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instruments, the need to strengthen the problem definition, the fact that initially none of the 
examined options was chosen and afterwards the need to define them more explicitly and the 
incompleteness of the analysis of social impacts. Taking into account of these comments, the 
relationship between different acts is explained, the problem definition has been made more 
precise, the policy options have been revised and the social impacts have been assessed in a 
qualitative manner for each option. 

3. 

PROBLEMS IDENTIFIED  

The  main  problem  is  the  scope  of  the  Directive  as  identified  in  its  Article  2(1),  namely 
whether  self-employed  drivers  should  be  included  in  it  and  if  yes,  under  which  conditions. 
Usually the working time of self-employed persons is not restricted as this would limit their 
own  entrepreneurial  freedom.  For  this  main  problem  the  impact  assessment  is  looking  the 
economic, social, environmental and administrative impacts of different scenario of excluding 
and including the self-employed drivers in the scope of the directive. 

An accompanying problem is the low level of compliance of a group of mobile workers, the 
so-called  "false"  self-employed  drivers,  which  has  several  underlying  causes:  delays  in 
transposition,  unwillingness  of  some  transport  companies,  misinterpretation  of  certain 
provisions and weak enforcement. 

The Directive does not contain any specific provisions on the control of its application. Such 
situation  differs  from  the  control  of  driving  times  and  rest  periods,  where  Directive 
2006/22/EC  prescribes  qualitatively  and  quantitatively  the  checks  that  Member  States  must 
undertake both at roadside and in the premises of  undertakings.  The  Commission  originally 
proposed  that  working  time  rules  would  be  controlled  under  Directive  2006/22/EC,  but  the 
legislator did not adopt this approach. 

Low compliance and weak enforcement is mainly related to the 'false' self-employed drivers. 
This category is composed of drivers that are formally self-employed, but who work regular 
hours for the same undertaking without the freedom to provide services to other parties. It is 
not explicitly defined in the Directive, but as these drivers do not satisfy the criteria of a 'self 
employed  driver',  they  should  be  subject  to  the  same  obligations  and  benefits  as  mobile 
workers. However, a number of drivers and companies do not apply correctly this distinction. 

Road  safety  concerns  due  to  driver's  fatigue  are  prevented  by  strict  enforcement  of  driving 
time  and  rest  period  rules  that  apply  to  all  drivers,  regardless  their  employment  status. 
Therefore  the  additional  effect  of  the  Working  Time  Directive  is  not  significant  for  road 
safety. 

All  these  problems  undermine  the  Community  rules  and  jeopardize  the  achievement  of  the 
key policy objectives of the Directive. 

4. 

OBJECTIVES  

The general objective justifying the EU action is the review of the scope of the directive and 
the compliance with the rules. This will be achieved by:  

•  clarifying the scope of the Directive with regard to self-employed drivers, 

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•  making  clear  distinction  between  self-employed  drivers  and  those  drivers  who  should  be 

treated as employed mobile workers for the purpose of the Directive, 

•  improving effectiveness of enforcement, 

•  reinforcing cooperation between Member States in order to ensure common application of 

the rules, 

5. 

POLICY OPTIONS  

Four  policy  options  were  identified:  three  of  them  deal  with  the  scope  of  the  Directive  and 
one with enforcement. 

Option A: 
"do  nothing".  This  option  does  not  involve  any  action  by  the  European 
Parliament  and  by  the  Council,  but  it  would  not  mean  maintaining  the  status  quo.  Only  the 
execution  of  conditions  specified  in  Article  2(1)  of  the  Directive,  namely  adoption  by  the 
Commission  of  a  report  and  a  consequent  legislative  proposal,  would  result  in  automatic 
inclusion of self-employed drivers within the scope of the Directive as of 23 March 2009. 

Extending  the  scope  of  the  Directive  by  including  all  self-employed 
Option B: 
drivers,  except  for  self-employed  drivers  that  are  only  performing  national  transport. 
This  option  provides  for  including  only  self-employed  drivers  performing  international 
transport  in  the  scope  of  the  Directive.  This  option  would  require  revision  of  the  Directive 
with regard to its scope. All other provisions would remain unchanged. 

Option C: 
Enhanced  enforcement  of  the  Directive  with  modalities  to  ensure  the 
inclusion of “false self-employed” into the scope while keeping the genuine self-employed 
workers out of the Directive. This option provides for inclusion of the so-called “false self 
employed”  in  the  scope  of  the  Directive  by  providing  for  clarification  of  certain  provisions 
and adding control requirements. 

Three sub-options have been considered: 

legal clarification within the framework of the Directive. This sub-option envisages 
C.1: 
clarification  to  the  definition  of  mobile  worker,  which  encompasses  'false'  self  employed 
drivers  so  that  no  room  for  interpretation  is  left.  This  option  could  also  involve  publishing 
guidance notes in order to ensure harmonised interpretation of definitions. 

C.2:  administrative measures imposing full enforcement together with clarification of 
the  categories  "self-employed  driver"  and  "mobile  worker".  This  sub-option  envisages 
the  introduction  of  administrative  measures  to  enhance  efficiency  and  effectiveness  of  the 
enforcement.  This  would  require  a  revision  of  the  Directive  with  a  view  to  modify  the 
definition  of  "mobile  worker"  as  in  option  C.1  and  to  introducing  requirements  concerning 
cooperation  to  ensure  equitable  application  of  the  rules  and  full  compliance  throughout  the 
Community. 

C.3: 
'phasing-in'  for  'false'  self-employed.  This  sub-option  envisages  modalities  for  the 
inclusion  of  the  'false'  self-employed  workers  by  clarification  of  the  definition  of  mobile 
worker  in  the  first  phase  (years  2009-2011)  and  by  introducing  from  2011  onwards  control 
requirements.  This  would  involve  a  revision  of  the  Directive  as  in  C2  with  a  timeline  for 
implementation. 

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Option D:  Complete exclusion of self-employed drivers. This policy option provides for 
full  exclusion  of  self-employed  from  the  scope  of  the  Directive.  It  reflects  the  existing 
situation,  when  self-employed  drivers  are  at  least  temporarily  excluded  and  it  does  not 
generate  any  changes  in  terms  of  impacts  with  relation  to  the  current  situation.  Hence,  this 
option  is  referred  to  as  the  base  case  scenario  against  which  the  other  options  have  been 
measured. 

It must be remembered that, regardless of the decision on inclusion or non-inclusion of self-
employed  drivers  within  the  scope  of  the  Directive,  self-employed  drivers  are  subject  to 
driving time, break and rest period rules established by Regulation (EC) No 561/2006. 

The impacts of policy options A, B, C were analysed against the current situation in option D. 
Economic, social, environmental and administrative impacts of four main policy options have 
been  analyzed  in  respect  of  policy  objectives  of  competition,  social  conditions  and 
compliance with the rules. 

6. 

COMPARISON OF THE OPTIONS AND CONCLUSIONS 

Option D 

This  option  has  not  been  chosen  due  to  the  problem  of  low  compliance  by  "false"  self-
employed  drivers.  This  problem  would  remain  and  even  increase  given  the  weakness  of 
enforcement,  differences  in  application  of  the  rules  and  continuous  lack  of  clear  distinction 
between genuine self-employed excluded from the rules and 'false' self-employed who fall in 
the scope of the Directive. This would further lead to undermining the policy objectives. 

Option A 

This  option  would  provide  for  level  playing  field  in  terms  of  social  rules  for  all  persons 
engaged in mobile road transport activities. However, this does not translate into enhancing 
fair  competition,  as  due  to  the  reduction  of  working  hours  and  a  consequent  decrease  of 
income, the great majority of self-employed drivers would not be able to continue with their 
business. This would have disruptive effects on entrepreneurship development as well as on 
the  position  of  the  sector  in  countries  with  a  high  share  of  self-employed.  Large  companies 
would  gain  competitive  advantage  and  take  over  market  shares  as  they  are  better  suited  to 
cope  with  reduced  working  hours  by  economies  of  scale,  while  small  and  medium-sized 
enterprises  would  lose.  Those  self-employed  who  would  remain  in  the  business  could  be 
tempted  to  take  on  another  job  to  compensate  for  the  lost  income  or  to  try  to  work  more 
intensively  to  maintain  at  least  a  majority  of  the  current  turnover.  This  would  consequently 
result  in  a  higher  work-related  stress  and  fatigue.  The  phenomenon  of  'false'  self-employed 
would become irrelevant, but the compliance rate would not improve and is likely to decrease, 
given the more numerous group covered by the rules coupled with weak enforcement and a 
general  low  compliance  discipline  of  "false"  self-employed  drivers.  Companies  would  also 
increase  their  operating  and  administrative  costs  by  having  to  recruit  additional  drivers  in 
order  to  maintain  the  same  amount  of  freight  transport  services.  The  increased  demand  for 
additional drivers may also lead to a shortage of professional drivers and consequently to an 
unsatisfied  market  demand  for  freight  transport  services.  The  enforcement  would  become 
more difficult with regard to controlling working time of self-employed drivers as they do not 
record working hours for salary purposes. 

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Option B 

Inclusion  of  self-employed  drivers  in  international  transport  would  ascertain  level  playing 
field  among  international  hauliers,  but  would  not  lead  to  noticeable  improvement  of 
compliance rate or reduction of the number of 'false' self-employed and does not improve the 
effectiveness in achieving policy objectives with insignificant impacts. 

Option C.1 

By providing for a better distinction between drivers in scope (employed mobile workers and 
'false'  self-employed)  and  out  of  scope  (genuine  self-employed),  C.1  would  contribute  to  a 
reduction of the 'false' self-employed phenomenon, but this reduction would be limited to the 
number  of  those  drivers  who  disobey  the  rules  due  to  misinterpretation  and  would  not 
eliminate  those  'false'  self-employed,  who  deliberately  ignore  the  rules  counting  on  low 
effectiveness  of  controls.  The  impact  on  improving  compliance  level  as  well  as  achieving 
policy objectives is minimal. 

Option C.2 

This option would combine the better distinction between drivers as presented in option C.1 
with requirements to enforce the rules in a harmonised way. It involves some administrative 
costs  to  be  borne  by  Member  States  related  to  effective  enforcement.  These  costs  would  be 
offset  by  benefits  stemming  from  an  increased  level  of  compliance  to  the  rules  and  better 
achievement of policy objectives. Companies would face slightly higher administrative costs 
due to recruiting  of  additional drivers related to elimination of 'false' self-employed drivers. 
Outsourcing  by  large  companies  would  result  in  increase  of  turnover  of  genuine  self-
employed  drivers.  This  would  enhance  attractiveness  of  the  profession  and  stimulate  the 
creation of new entrepreneurs. The distortion of competition between those employed drivers 
who  comply  with  the  rules  and  non-salaried  drivers  ('false'  self-employed)  who  disobey  the 
law would be prevented. The competitive position of genuine self-employed would not be put 
at stake by 'false' self-employed, who today benefit from unlimited working time (with all its 
consequences),  but  do  not  bear  the  responsibilities  and  risks  related  to  running  their  own 
business.  The  effectiveness  in  reducing  the  phenomenon  of  'false'  self-employed  and 
consequently in solving the compliance problem is the highest of all options. 

Option C.3 

This option combines measures proposed in previous sub-options C1 and C2 with a timeline 
and its impacts (positive and negative) are very similar to those of C2, with some figures only 
insignificantly higher or lower. The results are expected to materialize later than in C2 and the 
problems would be solved at a later stage. 

Comparison of compliance costs 

The results of cost-benefit analysis show that option A is the most costly imposing the highest 
costs to Member States related to enforcement and to the private sector related to recording 
and reporting of working time. Option A is also the most difficult to enforce, as it is almost 
impossible to verify the reliability of working time records done by self-employed drivers as 
working hours are not registered for salary purposes. Hence the costs incurred to improve the 
level  of  compliance  may  not  be  proportionate  to  the  results  achieved.  The  least  costly  is 
option D as it does not involve any new action. However, it results in high non-compliance 

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costs as it does not solve the problem of compliance by "false" self-employed drivers. Option 
B  is  the  cheapest  in  administrative  costs  for  businesses  and  almost  as  pricy  as  options  C  in 
terms  of  enforcement  costs.  However,  it  does  not  significantly  improve  the  situation  with 
regard to the phenomenon of 'false' self-employed. Option C.2 is less costly than option A and 
slightly  more  expensive  than  option  B.  However,  its  effectiveness  in  reducing  the 
phenomenon of 'false' self-employed and improving compliance in the field is the greatest. 

Conclusions  

When assessing impacts of different policy options as well as their compliance costs, it can be 
concluded  that  C.2  is  optimal.  A,  B  and  C1  dealing  with  the  scope  of  the  Directive  do  not 
solve the problem of compliance and do not lead to better achievement of policy objectives, 
whereas  C3  leads  at  the  later  stage  to  the  results  of  C2.  Option  C2,  focusing  both  on  the 
definition  and  enforcement  measures,  is  the  most  effective  in  addressing  the  problems  and 
achieving policy objectives. 

The proposal directly addresses the underlying causes of the problem of low compliance by 
ensuring the inclusion of 'false self-employed' and by more effective enforcement. Therefore 
it  is  concluded  that  the  current  working  time  rules  combined  with  enhanced  clarity  of  the 
scope of the Directive and accompanied by clear enforcement rules will reduce distortion of 
competition and enable better social protection of workers and assimilated groups. 

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