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 {SEC(2008) 2631} {SEC(2008) 2632}
Date: 2008-10-15
Institutions: European Commission
Subjects: arrangement of working time, occupational safety, road safety, road transport

EN 

EN 

   EN 

 
 
COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 15.10.2008 
COM(2008) 650 final 

2008/0195 (COD) 

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 

{SEC(2008) 2631} 
{SEC(2008) 2632} 

(presented by the Commission) 

EN 

   EN 

 
 
 
  
EXPLANATORY MEMORANDUM 

CONTEXT OF THE PROPOSAL 

Directive 2002/15/EC1 of the European Parliament and of the Council of 11 March 
2002  on  the  organisation  of  the  working  time  of  persons  performing  mobile  road 
transport  activities  has  become  applicable  on  23  March  2005.  Its  common  rules 
ensure minimum social protection standards for mobile workers in the road transport 
sector  and  are  perceived  as  an  important  step  towards  improving  the  health  and 
safety protection of mobile workers in the sector, enhancing road safety and ensuring 
fair competition. The Directive, with its provisions aiming at the protection of mobile 
workers from adverse effects caused by excessively long working hours, inadequate 
rest  or  disruptive  working  patters,  is  a  lex  specialis  to  the  general  Working  Time 
Directive 2003/88/EC and supplements Regulation (EC) No 561/20062 of 15 March 
2006 laying down common rules on driving times and rest periods for drivers. 

When adopting the Directive after a conciliation procedure, Council and Parliament 
agreed  that  it  should  in  principle  apply  to  self-employed  drivers  from  23  March 
2009. In addition, the Commission is requested to present a report at the latest two 
years  before  that  date  to  the  European  Parliament  and  the  Council,  followed  by  a 
legislative proposal based on the report, which would either define the modalities for 
the  inclusion  or  exclude  the  self-employed  drivers  from  the  scope  of  the  Directive 
(Article 2(1) of the Directive). 

The Commission report3 addressing potential consequences of the exclusion of self 
employed  drivers  from  the  scope  of  the  Directive  and  assessing  the  effects  of  its 
night  time  provisions  in  respect  of  road  safety,  conditions  of  competition,  the 
structure  of  the  profession  and  social  aspects  was  presented  to  the  European 
Parliament and the Council in May 2007. The different ways in which its provisions 
are interpreted and implemented in various Member States may result in distortions 
of  competition  and  differences  in  the  minimum  social  standards  applied  across 
Member  States.  The  difficulties  lie  in  particular  in  an  unclear  distinction  between 
mobile  workers  and  self-employed  drivers,  which  has  led  to  enforcement  problems 
and  the  risk  of  an  increasing  phenomenon  of  'false'  self-employed  drivers  for  the 
purpose  of  avoiding  falling  in  the  scope  of  the  directive.  The  report  therefore 
concluded  that  there  was  not  a  decisive  case  for  including  self-employed  drivers 
under the directive, but that it was important to address the issue of definitions and 
make them clear through an appropriate amendment that the notion of mobile worker 
covered by the directive also included the so-called 'false' self-employed drivers, i.e. 
those drivers who are not tied to an employer by an employment contract but who do 
not have the freedom to have relations with several customers. 

In  line  with  the  Commissions  commitment  for  better  regulation,  Community 
legislation  should  be  clear,  targeted,  proportionate  and  enforceable.  Following  in-
depth  investigation  with  regard  to  its  effects  on  road  safety,  conditions  of 

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

A. 

1. 

2. 

3. 

4. 

1 
2 
3 

EN 

2 

   EN 

 
                                                 
5. 

6. 

competition,  the  structure  of  the  profession  as  well  as  social  aspects,  the  impact 
assessment  has  demonstrated  that  despite  significant  administrative  costs,  a  full 
coverage  of  employed  and  self-employed  drivers  would  not  be  enforceable  and 
therefore the best option is to tackle the problem  of  false self-employed, instead of 
extending the scope of the Directive also to self-employed. 

This proposal for a directive amending Directive 2002/15/EC is therefore intended to 
enhance  clarity,  readability  and  enforceability  of  the  current  rules  by  providing  a 
more  precise  definition  of  mobile  workers  including  so  called  'false'  self-employed 
drivers under this category of workers and therefore subject to the directive. 

In  the  same  report  the  Commission  was  also  requested  to  assess  the  night  time 
provisions  (article  7(2)  of  the  Directive).  The  report  concluded  that  there  is  no 
demand to change or further harmonise the night time provisions. On this occasion it 
is also advisable to amend the definition of 'night work' contained in Article 3(i) of 
Directive  2002/15/EC.  As  it  is  worded  now,  'night  work'  would  include  even  very 
short periods of work, of a few minutes for instance, performed during night time. As 
such,  the  provision  is  economically  and  socially  disproportionate  and  unnecessary. 
The  Commission  therefore  proposes  to  reintroduce  a  minimum  working  time  of  2 
hours in the definition of night work as initially proposed. 

B. CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

7. 

8. 

9. 

10. 

11. 

The  stakeholder  consultations  carried  out  in  years  2006  and  2007  revealed  that  the 
majority of stakeholders regard the Directive as having mixed negative and positive 
impacts on different aspects. On the one hand, the working time rules are regarded 
by the majority as having positive impacts on health and safety, working conditions 
and aligning conditions of competition between transport companies, but on the other 
hand they bring about numerous negative side-effects such as loss of salary, shortage 
of drivers, and decrease in cost-effectiveness of the sector. 

Almost all stakeholders highlighted problems related to the practice of implementing 
the working time rules and indicated that the existing system of controls and checks 
on drivers is weak. This further leads to distortions of competition putting those who 
abide by the rules in a disadvantaged position. 

As regards foreseen impacts of inclusion or exclusion of self-employed drivers there 
were diverging views of different stakeholders, in particular with regard to a practice 
of enforcement and added value in terms of road safety and fair competition. 

Generally  stakeholders  advocate:  clarifying  the  scope  of  the  Directive  as  well  as 
certain  definitions  and  provisions,  improving  effectiveness  and  efficiency  of  the 
enforcement 
regime,  enhancing  cooperation  between  national  enforcement 
authorities, preventing the phenomenon of 'false' self-employed drivers. 

All  the  comments  made  during  stakeholder  consultations  have  been  taken  into 
consideration in the course of the impact assessment carried out in 2007-2008. The 
aim of the impact assessment was to identify the best policy option, which would be 
enforceable,  avoid  unnecessary  administrative  burden  as  well  as  possible  negative 

EN 

3 

   EN 

 
12. 

13. 

14. 

15. 

16. 

side-effects  of  the  proposed  arrangements  and  which  would  at  the  same  time 
contribute to EU transport policy objectives. 

Besides the basic policy options of inclusion and exclusion of self-employed drivers 
from the scope of the Directive, the impact assessment looked also at other measures 
such  as  strengthening  the  definition  of  mobile  workers  drivers  in  order  to  include 
"false  self-employed",  improving  effectiveness,  efficiency  and  consistency  of 
enforcement regime in order to address the problem of low compliance. All possible 
economic,  social,  environmental  and  administrative  impacts  of  four  main  policy 
options have been analyzed. 

In  view  of  the  results  of  assessing  the  impacts  of  different  policy  options,  this 
proposal  reflects  the  combination  of  the  option  concerning  inclusion  of  'false  self-
employed' within the scope of the Directive by providing for legal clarification and 
the  option  of  enhanced  enforcement  by  establishing  monitoring  and  control 
requirements  by  Member  States.  Indeed,  it  is  only  through  efficient  control  of  the 
applicable rules that the full effect of the provisions of the Directive is guaranteed. 

The  executive  summary  and  the  full  text  of  the  impact  assessment  accompany  this 
proposal. The impact analyses show that current working time rules combined with 
enhanced  clarity  of  the  scope  of  the  Directive  and  accompanied  by  enforcement 
requirements  will  improve  compliance  with  social  rules,  reduce  distortions  of 
competition and enable Member States to avoid administrative burden and potential 
enormous enforcement costs related to setting up an EU wide complex enforcement 
regime. 

Subsidiarity 
The  proposal  conforms  to  the  subsidiarity  principle  as  it  aims  essentially  at 
clarification of the scope of the existing Community rules and improvement of their 
enforcement, which cannot be achieved by the Member States alone. Moreover the 
proposal  seeks  to  improve  exchange  of  information  between  the  Member  States' 
authorities  which  monitor  the  compliance  with  the  rules.  A  Community  action  is 
therefore  necessary  since  it  is  impossible  for  a  single  Member  State  or  group  of 
Member States to satisfactorily solve the identified problems. 

Proportionality 
The proposal is in conformity with the proportionality principle as it does not exceed 
what  is  required  to  achieve  its  objective.  It  clarifies  the  scope  of  current  rules  and 
lays  down  general  common  requirements  for  ensuring  their  equitable  enforcement, 
but does not prevent Member States from taking national decisions on the individual 
monitoring and control arrangements. 

17. 

The proposal will not entail any additional costs for the Community budget and will 
not cause an administrative burden for Member States. 

C. EXPLANATION OF AMENDMENTS 

18. 

The  proposal  introduces  the  following  modifications  without  changing  the  overall 
purpose  of  the  directive,  namely  social  protection  of  workers  and  those  who  are 
assimilated to workers under the social rules in road transport: 

EN 

4 

   EN 

 
Article 2(1) of the Directive clarifies the scope. The Directive applies to all mobile 
workers  as  defined  in  Article  3(d)  including  the  so  called  'false'  self-employed 
drivers, i.e. those drivers who are officially self-employed, but in fact are not free to 
organise  their  working  activities.  It  does  not  cover  genuine  self-employed  drivers 
who are not in the scope of the Directive. 

Article  3(a)  maintains  the  definition  of  'working  time'  applicable  to  all  drivers 
covered  by  the  directive,  but  deletes  the  definition  of  "working  time"  for  self-
employed drivers as they fall out of the scope. In order to tackle the phenomenon of 
so called false self-employed, a more precise definition of 'mobile workers' is added 
to article 3 (d). 

Article 3(i) makes the definition of "night work" applicable in practice. 

Article 11(a) introduces common principles designed to ensure greater transparency 
and  effectiveness  of  national  enforcement  regimes,  common  understanding  of  the 
rules  and  their  equitable  application.  The  new  provisions  also  call  for  greater 
cooperation between Member States' relevant authorities responsible for enforcement 
as  well  as  for  support  from  the  Commission  to  facilitate  the  dialogue  between 
enforcers  and  industry  and  between  Member  States  to  ensure  common  approach  to 
the  implementation  of  working  time  rules.  All  this  aims  at  improving  compliance 
with  the  Community  rules  and  consequently  at  contributing  to  EU  transport  policy 
objectives. 

EN 

5 

   EN 

 
2008/0195 (COD) 

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 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
71 and Article 137(2) thereof, 

Having regard to the proposal from the Commission, 

Having regard to the opinion of the European Economic and Social Committee4, 

Having regard to the opinion of the Committee of the Regions5, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty6, 

Whereas: 

(1) 

(2) 

Council  Regulation  (EC)  No  561/2006  of  15  March  2006  on  the  harmonisation  of 
certain social legislation relating to road transport and amending Council Regulations 
(EEC)  No  3821/85  and  (EC)  2135/98  and  repealing  Council  Regulation  (EEC)  No 
3820/857 lays down common driving times, breaks and rest periods for drivers. That 
Regulation does not cover other aspects of working time for the road transport sector. 

Directive  2002/15/EC  of  the  European  Parliament  and  of  the  Council  of  11  March 
2002  on  the  organisation  of  the  working  time  of  persons  performing  mobile  road 
transport activities8 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. 

(3) 

Article  2(1)  of  Directive  2002/15/EC  requires  the  Commission  to  report  on  the 
exclusion  of  self-employed  drivers  from  the  scope  of  the  Directive  and  to  make  a 
proposal to that end. 

4 
5 
6 
7 
8 

OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
OJ L 102, 11.4.2006, p. 1.  
OJ L 80, 23.3.2002, p. 35. 

EN 

6 

   EN 

 
                                                 
(4) 

(5) 

(6) 

(7) 

(8) 

The Commission report on the consequences of the exclusion of self employed drivers 
from the scope of the Directive 2002/15/EC and on the consequences of the night time 
provisions9 was presented to the European Parliament and the Council in May 2007. 

the 

transposition  of  Directive  2002/15/EC,  stakeholder 
The  experience  with 
consultations, several studies and the impact assessment carried out revealed problems 
with  the  practice  of  implementing  working  time  rules  uniformly,  low  compliance 
discipline and weak enforcement regimes in Member States. 

As a consequence of differences in interpretation, application and enforcement of the 
provisions of Directive 2002/15/EC by the Member States and of a failure to adhere to 
the minimum working time standards by transport companies and drivers, competition 
is distorted, and the safety and health of drivers is jeopardized. 

In  the  light  of  the  Commission  report  and  the  impact  assessment,  self-employed 
drivers should be excluded from the scope of Directive 2002/15/EC. 

Nevertheless, it is desirable that Member States continue to alert self-employed drivers 
of  the  adverse  effects  on  health  and  safety  as  well  as  of  negative  impacts  on  road 
safety  caused  by  excessively  long  working  hours,  inadequate  rest  or  disruptive 
working patterns. 

(9) 

It is therefore necessary to make certain technical adjustments to the text of Directive 
2002/15/EC. 

(10)  The Community legislation is only efficient and effective if it is implemented by all 
Member  States,  applied  equally  to  all  actors  concerned  and  controlled  on  a  regular 
basis and in an efficient manner. 

(11)  Monitoring compliance is a complex task with multiple actors and therefore it requires 
cooperation between Member States and the Commission, as well as between Member 
States themselves. 

(12) 

It  is  therefore  appropriate  to  modernise  Directive  2002/15/EC  in  order  to  remedy 
shortcomings  in  the  implementation,  application  and  enforcement  of  the  rules  by 
clarifying its scope, reinforcing administrative cooperation among Member States and 
promoting the exchange of information and good practice. 

(13)  The objective  of  this  Directive, namely  the  modernisation  of  Community  law  on  the 
organisation  of working  time and  enhancing its enforceability, cannot be sufficiently 
achieved by Member States and can, therefore be better achieved at Community level; 
the Community may adopt measures, in accordance with the principle of subsidiarity 
as  set  out  in  Article  5  of  the  Treaty.  In  accordance  with  the  principle  of 
proportionality,  as  set  out  in  that  Article,  the  Directive  does  not  go  beyond  what  is 
necessary in order to achieve these objectives. 

(14)  This  Directive  respects  fundamental  rights  and  observes  the  principles  specifically 
recognised in particular by the Charter of Fundamental Rights of the European Union. 
In particular it seeks to ensure the right of every worker to working conditions which 

9 

COM(2007) 266 final 

EN 

7 

   EN 

 
                                                 
respect  his  or  her  health  and  safety  as  well  as  the  right  to  limitation  of  maximum 
working  hours,  to  daily  and  weekly  rest  periods  (Article  31  of  the  Charter  of 
Fundamental Rights of the European Union). 

(15)  Directive 2002/15/EC should therefore be amended accordingly, 

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 

Directive 2002/15/EC is amended as follows: 

(1) 

Article 2 is amended as follows: 

(a) paragraph 1 is replaced by the following: 

"1.  The  Directive  shall  apply  to  mobile  workers,  as  defined  in  Article  3(d)  of  this 
Directive, employed by undertakings established in a Member State, participating in 
road transport activities covered by Regulation (EC) No 561/2006 or, failing that, by 
the AETR Agreement. 

This Directive shall also apply to mobile workers as defined in the second sentence 
of Article 3(d). 

(b)  in  paragraphs  2  and  3  the  reference  "Directive  93/104/EC"  is  replaced  by  the 
reference "Directive 2003/88/EC". 

(c) in paragraph 4 the reference "Regulation (EEC) No 3820/85" is replaced by the 
reference "Regulation (EC) No 561/2006". 

(2) 

Article 3 is amended as follows 

(a) point (a) 2, first sentence is deleted. 

(b) The following sentence is added to point (d): 

"'mobile worker' shall also include any person who is not tied to an employer by an 
employment contract or by any other type of working hierarchical relationship, but: 

i 

ii 

who does not have the freedom to organise the relevant working activities; 

whose income does not depend directly on the profits made; 

iii  who does not have the freedom, individually or through a cooperation between 
self-employed drivers, to have relations with several customers." 

(c) point (e) is deleted. 

(d) point (f) is replaced by the following: 

"(f)  'person  performing  mobile  road  transport  activities'  shall  mean  any  mobile 
worker who performs such activities;" 

EN 

8 

   EN 

 
(e) point (i) is replaced by the following: 

"(i) 'night work' shall mean work during a period of work which includes at least two 
hours work performed during night time." 

In  Article  4(a)  the  reference  "the  fourth  and  fifth  subparagraphs  of  Article  6(1)  of 
Regulation  (EEC)  No  3820/85  or,  where  necessary,  the  fourth  subparagraph  of 
Article 6(1) of the AETR agreement" is replaced by the reference "Regulation (EC) 
No 561/2006 or, where necessary, the AETR Agreement". 

In  Article  5(1)  the  reference  "Regulation  (EEC)  No  3820/85"  is  replaced  by  the 
reference "Regulation (EC) No 561/2006". 

In  Article  6  the  reference  "Regulation  (EEC)  No  3820/85"  is  replaced  by  the 
reference "Regulation (EC) No 561/2006". 

(3) 

(4) 

(5) 

(6) 

The following Article 11a is inserted: 

'Article 11a 

Enforcement 

(1)  Member States shall organise a system of appropriate and regular monitoring 
and controls in order to guarantee the correct and consistent implementation 
of  the  rules  contained  in  this  Directive.  They  shall  ensure  that  the  national 
bodies responsible for enforcement of the Directive have an adequate number 
of qualified inspectors and shall take whatever measures are appropriate. 

(2)  Member  States  shall  communicate  to  the  Commission  details  of  the 

monitoring and controls arrangements set up. 

(3)  Member  States  shall  take  the  necessary  measures  to  ensure  that  transport 
undertakings and mobile workers have access to information, assistance and 
advice in the field of working time rules and work organisation. 

(4)  With a view to ensuring the effective, efficient and uniform implementation 
of  the  Directive  throughout  the  Community,  the  Commission  shall  support 
dialogue between Member States with the following aims: 

(a) 

(b) 

(c) 

to  reinforce  administrative  cooperation  between  their  competent 
authorities, through the adoption of effective systems of exchange of 
information,  the  improvement  of  access  to  information  and  the 
promotion  of  exchange  of  information  and  good  practices  in 
enforcement of working time rules; 

to  promote  a  common  approach  to  the  implementation  of  this 
Directive; 

to  facilitate  dialogue  between  the  transport  sector  and  enforcement 
authorities." 

EN 

9 

   EN 

 
(8) 

In Article 13 the reference "Article 16(2) Regulation (EEC) No 3820/85" is replaced 
by the reference "Article 17(1) of Regulation (EC) No 561/2006". 

Article 2 

1. 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions  necessary  to  comply  with  this  Directive  by  […]  at  the  latest.  They  shall 
forthwith  communicate  to  the  Commission  the  text  of  those  provisions  and  a 
correlation table between those provisions and this Directive. 

When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. Member States shall determine how such reference is to be made. 

2. 

Member States shall communicate to the Commission the text of the main provisions 
of national law which they adopt in the field covered by this Directive. 

This Directive shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

Article 3 

Article 4 

This Directive is addressed to the Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

EN 

10 

   EN