REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Implementation by Member States of Council Directive 2005/47/EC of 18 July 2005 on the Agreement between the Community of European Railways (CER) and the European Transport Workers’ Federation (ETF) on certain aspects of the working conditions of mobile workers engaged in interoperable cross-border services in the railway sector
Date: 2012-10-26
Institutions: European Commission
Subjects: cross-border transport, national implementing measure, rail transport, transport staff, working conditions, working time

EUROPEAN 
COMMISSION 

Brussels, 26.10.2012  
COM(2012) 627 final 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

Implementation by Member States of Council Directive 2005/47/EC of 18 July 2005 on 
the Agreement between the Community of European Railways (CER) and the European 
Transport Workers’ Federation (ETF) on certain aspects of the working conditions of 
mobile workers engaged in interoperable cross-border services in the railway sector 

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REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

Implementation by Member States of Council Directive 2005/47/EC of 18 July 2005 on 
the Agreement between the Community of European Railways (CER) and the European 
Transport Workers’ Federation (ETF) on certain aspects of the working conditions of 
mobile workers engaged in interoperable cross-border services in the railway sector 

TABLE OF CONTENTS 

Introduction .................................................................................................................. 4 

The Directive................................................................................................................ 4 

Formal Transposition of the Directive ......................................................................... 4 

Monitoring and assessing the Directive ....................................................................... 5 

Scope and Object of the Agreement annexed to the Directive .................................... 5 

The main operative Provisions of the Agreement annexed to the Directive................ 6 

Clause 3 — Daily rest at home .................................................................................... 6 

Clause 4 — Daily rest away from home ...................................................................... 6 

Clause 5 — Breaks....................................................................................................... 7 

Clause 6 — Weekly rest period ................................................................................... 8 

Clause 7 — Driving Time ............................................................................................ 9 

Clause 8 — Checks .................................................................................................... 10 

Assessment of the practical effect of the provisions of the Directive........................ 10 

Towards the Single European Railway Area — the importance of interoperable 
cross-border services.................................................................................................. 10 

Implications of interoperable cross-border railway services for staff mobility ......... 11 

The social impact of the Directive ............................................................................. 14 

The economic impact of the Directive ....................................................................... 15 

Conclusions regarding the impact of the Directive.................................................... 15 

Assessment of potential administrative burdens ........................................................ 16 

Issues raised by Member States and Social Partners during the Consultations relating 
to this Report .............................................................................................................. 16 

Conclusions ................................................................................................................ 17 

1. 

1.1. 

1.2. 

1.3. 

2. 

3. 

3.1. 

3.2. 

3.3. 

3.4. 

3.5. 

3.6. 

4. 

4.1. 

4.2. 

4.3. 

4.4. 

4.5. 

5. 

6. 

7. 

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1. 

INTRODUCTION 

1.1. 

The Directive 

Council Directive 2005/47/EC of 18 July 2005 on the Agreement between the Community of 
European Railways (CER) and the European Transport Workers’ Federation (ETF) on certain 
aspects  of  the  working  conditions  of  mobile  workers  engaged  in  interoperable  cross-border 
services in the railway sector (henceforth ‘the Directive’)1 was adopted by the Council on the 
basis of Article 155 of the Treaty on the Functioning of the European Union (ex Article 139 
of the EC Treaty), which provides that - 

‘Article 155 (ex Article 139 TEC) 

1. Should management and labour so desire, the dialogue between them at Union level may 
lead to contractual relations, including agreements. 

2. Agreements concluded at Union level shall be implemented either in accordance with the 
procedures  and  practices  specific  to  management  and  labour  and  the  Member  States  or,  in 
matters  covered  by  Article  153,  at  the  joint  request  of  the  signatory  parties,  by  a  Council 
decision on a proposal from the Commission. The European Parliament shall be informed. 

The  Council  shall  act  unanimously  where  the  agreement  in  question  contains  one  or  more 
provisions  relating  to  one  of  the  areas  for  which  unanimity  is  required  pursuant  to 
Article 153(2).’ 

Since the term ‘decision’ in Article 155 of the Treaty is used in its general sense so that the 
legislative instrument can be selected in accordance with Article 288 of the Treaty, it is up to 
the Commission to propose to the Council which of the three binding instruments mentioned 
in  the  said  article  (regulation,  directive  or  decision)  would  be  the  most  appropriate.  In  this 
case  the  Commission  concluded  that  the  most  suitable  instrument  would  be  a  Council 
directive,  given  the  type  and  content  of  the  social  partners’  agreement  and  that  it  would  be 
best  to  apply  it  indirectly  through  provisions  to  be  transposed  by  the  Member  States  or  the 
social partners into the Member States’ national law. 
Indeed,  the  purpose  of  the  Directive  is  to  implement  the  Agreement  concluded  on 
27 January 2004  between  the  Community  of  European  Railways  (CER)  and  the  European 
Transport Workers’ Federation (ETF) on certain aspects of the working conditions of mobile 
workers engaged in interoperable cross-border services. 

1.2. 

Formal Transposition of the Directive 

Member  States  had  either  to  transpose  the  Directive,  after  consultation  with  the  social 
partners,  by  27  July  2008  or  to  ensure  that  the  social  partners  adopted  the  necessary 
provisions by means of an agreement by that date (Article 5). 
All  the  Member  States  have  transposed  the  Directive,  with  the  exception  of  those  Member 
States  with  no  railway  sector  (Malta  and  Cyprus)  or  no  cross-border  service  with  other  EU 
Member  States  (Finland).  In  two  cases,  transposition  occurred  very  late  and  only  after  the 
Commission had launched infringement proceedings (procedures C-291/10 and C-305/10). 
All  the  Member  States,  except  Lithuania,  consulted  the  social  partners  in  this  process.  
Nevertheless, the social partners of Lithuania did have some influence on the implementation 
of the transposition, because a collective agreement was updated once the Directive had been 
implemented. 

1 

OJ L 195, 27.7.2005, p. 15. 

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For the substance of the transposition and the conformity thereof with the Directive, a clause-
by-clause  description  of  the  situation  is  contained  in  sections  2  and  3.  The  Commission 
intends to take appropriate measures regarding the issues and problems identified there. 

1.3.  Monitoring and assessing the Directive 

In order to monitor the economic and social impact of the Agreement, and Clause 4 thereof in 
particular,  the  Commission  undertook  to  submit  a  report  to  the  Council,  which  it  did  on  15 
December 2008 in the Communication from the Commission to the Council on the ‘Economic 
and  social  impact  of  the  Agreement  appended  to  Directive  2005/47/EC  concluded  on  27 
January  2004  between  the  social  partners  on  certain  aspects  of  the  working  conditions  of 
mobile workers engaged in interoperable cross-border services in the railway sector’2. 

Article  3  of  the  Directive  provides  that  the  Commission  shall,  after  consulting  management 
and  labour  at  European  level,  report  to  the  European  Parliament  and  the  Council  on  the 
implementation of this Directive in the context of the development of the railways sector. 

As  a  backup  to  this  report,  the  Commission  launched  a  study  on  the  implementation  of  the 
Directive. The Social Partners were closely associated and were consulted on the findings of 
this study. 

2. 

SCOPE AND OBJECT OF THE AGREEMENT ANNEXED TO THE DIRECTIVE 

Clause 1- Scope 

This Agreement shall apply to mobile railway workers assigned to interoperable cross-border 
services carried out by railway undertakings. 

The application of this Agreement is optional for local and regional cross-border passenger 
traffic, cross-border freight traffic travelling no further than 15 kilometres beyond the border, 
and for traffic between the official border stations listed in the Annex. 

It  is  also  optional  for  trains  on  cross-border  routes  which  both  start  and  stop  on  the 
infrastructure of the same Member State and use the infrastructure of another Member State 
without  stopping  there  (and  which  can  therefore  be  considered  national  transport 
operations). 

As  regards  mobile  workers  engaged  in  interoperable  cross-border  services,  Directive 
93/104/EC shall not apply to those aspects for which this Agreement contains more specific 
provisions. 

In five Member States (Estonia, Latvia, Slovenia, Denmark and Greece) the legislation (apart 
from Clause 5) applies only to drivers. In the other Member States the legislation applies not 
only  to  drivers,  but  usually  to  the  whole  international  train  crew  (not  every  Member  State 
goes into greater detail). 

None of the Member States has special clauses for employees who work both internationally 
and nationally. 

Member States' use of the optional exclusions 

2 

COM(2008) 855 final, 15.12.2008. 

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Fifteen  Member  States  did  not  make  use  of  the  option  to  apply  the  Directive  to  local  and 
regional  cross-border  passenger  traffic  and  to  freight  traffic  no  further  than  15  kilometres 
beyond  the  border.  Ten  Member  States  (Czech  Republic,  Estonia,  Hungary,  Italy,  Slovakia, 
Austria, Luxembourg, Denmark, France and Spain) did take up this option in their legislation 
and used the wording of the Agreement (second paragraph of Clause 1). Two Member States 
(Lithuania and Greece) took up this option and used their own formula. In the latter case the 
Agreement applies to all cross-border transport, including short distances. 

Fifteen Member States did not take up the option to apply the Directive to cross-border routes 
which  stop  and  start  in  the  same  Member  State.  Eight  Member  States  (Czech  Republic, 
Estonia, Hungary, Slovakia, Austria, Denmark, Sweden and Spain) did take up this option and 
used  the  description  in  the  EU  Directive.  Three  Member  States  (Lithuania,  Greece  and 
Portugal) took up this option and used their own descriptions. 

3. 

THE  MAIN  OPERATIVE  PROVISIONS  OF  THE  AGREEMENT  ANNEXED  TO  THE 
DIRECTIVE 

3.1. 

Clause 3 — Daily rest at home 

Clause 3 requires that daily rest at home should normally be for a minimum of 12 consecutive 
hours per 24-hour period. The Agreement permits a reduction up to an absolute minimum of 9 
hours,  but  this  reduction  may  only  occur  once  every  seven-day  period.  Reduced  daily  rest 
may not be scheduled between two rests away from home and the hours by which the rest was 
reduced must be added to the next daily rest at home. 

Transposition of the requirements on daily rest at home 

Twenty-one Member States apply the provision of 12 consecutive hours per 24-hour period of 
daily rest at home. Belgium, Luxembourg and France  do not use  it; normally, they have 14 
consecutive hours of daily rest at home. Poland also has a different clause, but the minimum 
rest at home is also 12 hours. 
All Member States, except Latvia, Poland, Slovenia and Slovakia, include in their legislation 
the  possibility  of  reducing  the  daily  rest  in  every  seven-day  period.  Latvia,  Poland  and 
Slovenia  have  not  included  this  possibility  in  their  legislation.  Slovakia  provides  for  the 
possibility of reducing daily rest at home on the basis of ‘demonstrable objective-technical or 
organisational reasons’. Thus, in such a situation, the rules of the Directive are not followed 
and resting time can be reduced more than once a week. 
With the exception of Latvia and Poland, all the Member States have incorporated into their 
legislation the restriction on shortened daily rest. Latvia's rail staff do not travel beyond the 
border for more than 110 km, which means that they can return home the same day. Poland 
did not include this restriction, because it did not include the possibility of reducing the daily 
rest either. 
In  twelve  Member  States  (the  Czech  Republic,  Bulgaria,  Estonia,  Hungary,  Lithuania, 
Romania, Austria, Germany, Netherlands, the United Kingdom, Sweden and Spain), the rules 
applied to cross-border workers with respect to daily rest at home are not the same as those 
applied  to  other  staff  in  the  railway  sector.  In  most  countries  where  there  is  a  difference 
between national and international personnel, the rules for domestic employees are included 
in the general working-time laws. In some countries (Netherlands and the United Kingdom) 
there is no specific right to a rest at home, for example. Elsewhere, the rules for cross-border 
workers are no different from the rules applied to other staff in the railway sector. 

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3.2. 

Clause 4 — Daily rest away from home 

Clause 4 requires that daily rest away from home must be for at least 8 consecutive hours per 
24-hour  period  and  that  a  rest  away  from  home  must  be  followed  by  a  daily  rest  at  home, 
unless  the  social  partners  of  a  railway  undertaking  or  at  national  level  have  concluded  an 
agreement on a second consecutive rest away from home (with compensation). 

The text of this clause contains a footnote to the effect that the question will be renegotiated at 
European  level  two  years  after  the  Agreement  has  been  signed.  So  far,  however,  these 
negotiations have not borne fruit. 

Furthermore,  the  clause  recommends  that  attention  be  paid  to  the  level  of  comfort  of  the 
accommodation used by staff during these rests away from home. 

Transposition of the requirements for daily rest away from home 

Of the countries that have transposed the directive, all have adopted the rules on the daily rest 
away from home in their legislation, except for Latvia, Poland, Luxembourg and Slovenia. As 
Latvia does not have international routes longer than 110 km (one way), there would seem to 
be no need for rests away from home. Slovenia and Luxembourg impose the rule whereby the 
daily  rest  away  from  home  should  be  followed  by  a  rest  at  home,  but  have  different  rules 
about the duration of those rests. For Slovenia, the rest between two shifts must be twice as 
long as the shift. Thus, if a shift lasts six hours, the rest has to last twelve hours). Poland has 
no specific rules on the daily rest away from home. In Luxembourg, the following limits are 
applied to the maximum time away from home: 

- Twenty-eight hours if the rest lasts nine hours, 
- Twenty-nine hours if the rest lasts ten hours, 
- Thirty hours if the rest lasts not less than eleven. 
If for any reason, the limits of twenty-eight, twenty-nine or thirty hours cannot be applied, the 
employee will receive compensation equal to the excess time. 
The  possibility  for  social  partners  to  agree  on  a  second  rest  away  from  home  has  been 
negotiated  in  only  eight  Member  States:  Germany,  Hungary,  Romania,  Slovenia,  the 
Netherlands, France, Italy and Portugal. With the exception of Slovenia, this has taken place 
at the level of undertakings. In Germany, only one instance of an agreement has been reported 
in relation to one of the incumbent's subsidiaries. In Italy, France and the Netherlands there 
have been no agreements with incumbents. In Slovenia, an agreement was reached at national 
level. There seem to be agreements about compensation for rests away from home in only six 
countries (Hungary, Romania, Slovenia, Luxembourg, France and Italy). 
The  level  of  comfort  offered  to  staff  during  rests  away  from  home  is  included  in  the 
legislation  of  only  nine  Member  States  (Hungary,  Lithuania,  Romania,  Slovenia,  Belgium, 
Sweden, Italy and Spain). Denmark has collective agreements on this issue instead. 
In  some  countries  (the  Czech  Republic,  Estonia,  Hungary,  Lithuania,  Romania,  Austria, 
Belgium, Germany, Netherlands, the United Kingdom and Sweden), the rules applied to daily 
rest away from home in the case of interoperable cross-border railway workers are different 
from the rules applied to railway workers in purely domestic settings. 

One  point  for  consideration  is  the  definition  of  the  term  ‘home’.  This  was  discussed  by  the 
signatories to the agreement, because the negotiations were based on the French text, which 
uses the term ‘résidence normale du personnel mobile’. In a joint letter of 10 June 2009, they 
clarified that ‘the French meaning of the expression ‘résidence normale du personnel mobile’ 
in the railway sector is not related to the private home/domicile of the worker concerned, but 

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rather his/her workplace (home depot/Dienstort) at which he/she is based’. On this basis, in 
Germany  the  rules  equate  ‘home’  not  with  the  private  place  of  residence  of  the  staff  in 
question, but with the place where they are based in relation to their employer (‘Dienstort’). 

3.3. 

Clause 5 — Breaks 

The provisions on breaks distinguish between drivers and other on-board staff. 

– 

– 

Unless there is a second driver, drivers are entitled to a break of at least 45 minutes if 
the working time is longer than 8 hours and a minimum of 30 minutes for working 
days  of  between  6  and  8  hours.  During  the  working  day  parts  of  this  break  should 
take place between the third and sixth working hour. If there is a second driver, this 
break must be regulated at national level instead. 

For other on-board staff, there must be a break of at least 30 minutes if the working 
day lasts longer than 6 hours. 

Transposition of the requirements on breaks 

The  exemption  for  cases  where  there  is  a  second  driver  has  been  used  in  14  countries,  but 
apparently  not  in  the  Czech  Republic,  Bulgaria,  Denmark,  Hungary,  Slovakia,  Austria, 
Belgium, Ireland, Luxembourg or Sweden. 

It would seem that only the United Kingdom, Latvia, Poland and the Czech Republic have not 
used the wording of the clause in their transposition. 

In Latvia, international interoperable trains have two drivers. Thus, the rules relating to breaks 
do not have to be applied. Here, the Czech Republic relies on its national working-time law. 
However,  in  the  government  regulation3  transposing  the  Directive,  a  break  for  railway 
personnel working alone for more than six hours continuously is imposed, although the length 
of that break is not specified. Poland does not have this clause at all. The United Kingdom has 
a different rule for breaks in the case of international services: ‘not less than 30 minutes if the 
working  time  of  a  sole  driver  is  6  or  more  hours,  subject  to  train  delays  and  timetable 
requirements,  but  adequate  in  time  and  duration  to  allow  the  ‘effective  recuperation  of  the 
worker’, as set out in Regulation 4. For other drivers [domestic drivers] whose working time 
is  more  than  6  hours,  the  break  period  they  are  entitled  to  is  20  minutes  or  an  equivalent 
period  of  compensatory  rest  or  other  form  of  health  and  safety  protection  where  this  is  not 
possible’. They do not have a rule imposing a break of at least 45 minutes if the working time 
is longer than 8 hours. 

Denmark imposes this requirement through collective agreements. 

In  eight  countries  (the  Czech  Republic,  Denmark,  Hungary,  Poland,  Austria,  Netherlands, 
Greece and Portugal) breaks cannot be adapted in the event of delays. Latvia works with two 
drivers, so that this rule does not apply anyway. In France the question is handled differently 
depending  on  the  system  in  force:  in  the  case  of  an  incumbent  company,  breaks  cannot  be 
changed as a result of delays, whereas the law governing other railway operators permits this 
adaptation. 

Sixteen Member States have literally copied the provisions relating to the timing of breaks. 

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Three Member States (the Czech Republic, Luxembourg and the United Kingdom) use a 
different text, but impose a similar rule. For example, in the United Kingdom: ‘At least 15 
minutes of the break must be scheduled to be between the third and sixth hour of the working 
time’. In Bulgaria, Poland and Austria, neither this nor any similar rule is applicable. In 
France, this rule only applies to rail freight operators other than the incumbent company. As 
Latvia works with two drivers, this rule does not apply anyway. 

The rule regarding other on-board staff is implemented in almost all Member States. 

3.4. 

Clause 6 — Weekly rest period 

Mobile  workers  (i.e.  drivers  and  others)  engaged  in  cross-border  services  are  entitled  to  a 
minimum uninterrupted weekly rest period of 24 hours over and above the daily rest periods 
per seven-day period. In addition to these 52 24-hour rest periods, there must be another 52 
such periods, making a total of 104 24-hour rest periods. These periods must be arranged in 
such a way that on at least 12 occasions two such 24-hour periods are taken together, that the 
pair/double-rest period falls on a weekend and that on 12 other occasions two such periods are 
again  paired,  although  these  pairs/double-rest  periods  do  not  have  to  fall  on  a  Saturday  or 
Sunday. 

Transposition of the requirements regarding the weekly rest period 

Almost all the Member States have incorporated these rules into their national legislation. In 
Poland,  a  mobile  worker  has  a  rest  period  of  35  hours  (one  hour  less  than  the  Directive). 
Luxembourg  has  a  different  rule  regarding  weekly  rest  periods  and  makes  a  distinction 
between long distances and short distances. The short distances are distances of less than 15 
km  (where  pursuant  to  Clause  1  the  Agreement/Directive  is  optional).  In  the  case  of  long 
distances, the rules are compatible with the directive. 

3.5. 

Clause 7 — Driving Time 

Driving  time,  the  period  when  the  driver  is  in  charge  although  not  necessarily  moving  the 
train,  may  not  exceed  9  hours  for  a  day  shift  and  8  hours  for  a  night  shift.  Over  a  2-week 
period, driving time may not exceed 80 hours. 

Transposition of the requirements on driving time 

Since  one  of  the  major  risks  is  fatigue,  working  hours  are  an  important  aspect  of  working 
conditions.  In  the  case  of  cross-border  services,  the  problem  may  be  heightened  when 
colleagues  from  the  same  company  are  absent,  particularly  on  freight  trains  where  there  is 
only  one  driver  and  no  other  staff.  Lack  of  familiarity  and  a  foreign-language  environment 
may  lead  to  a  real  or  perceived  absence  of  support.  This  particular  context  may  warrant 
specific  risk  assessments  and  good  practice  guidance  for  cross-border  services  in  the 
framework  of  Directive  89/391/EEC4  on  the  introduction  of  measures  to  encourage 
improvements in the safety and health of workers at work. 

Among the countries that have transposed the directive, only two Member States did not use 
the  wording  of  this  clause.  Poland  does  not  have  any  rules  on  maximum  daily  or  weekly 
driving  time,  but  does  have  a  rule  in  its  labour  code  on  a  maximum  working  week  of  40 

4 

Council  Directive  89/391/EEC  of  12  June  1989  on  the  introduction  of  measures  to  encourage 
improvements in the safety and health of workers at work (OJ L 183, 29.6.1989, p. 1). 

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hours. This means that driving time will stay below this limit. In Latvia, drivers are involved 
in  both  national  and  international  services,  and  do  not  have  pure  cross-border  work.  For 
interoperable services, therefore, drivers will not drive for more than 80 hours in two weeks  

Seven Member States (Estonia, Slovenia, Austria, Ireland, Denmark, Greece and Italy) copied 
the directive’s definition of night time. Eighteen Member States use a different definition. A 
large  number  of  countries  have  adopted  a  broader  interpretation  of  night  time  which  is  in 
favour  of  employees.  Slovakia,  Romania,  Hungary,  Bulgaria,  Latvia  and  Spain  define  night 
time as being between 22h00 and 06h00. For Sweden and Germany it is between 23h00 and 
06h00  and  for  the  Netherlands  between  00h00  and  07h00.  In  France,  there  are  differences 
between the incumbent company (night time between 23h00 and 06h00) and other rail freight 
operators  (night  time  between  22h00  and  05h00).  Luxembourg  uses  a  definition  that  is  less 
favourable for employees: night time (for drivers) is defined as between 01h00 and 04h00. 

Twelve Member States use their own definition of ‘night shift’: the Czech Republic, Bulgaria, 
Hungary, Latvia, Poland, Slovakia, Germany, Luxembourg, Netherlands, the United Kingdom 
including Northern Ireland, France and Spain. In Slovakia, a night shift is any shift of which 
the greater part falls between 22h00 and 06h00; in Latvia and Germany, a night shift is a shift 
which  includes  at  least  two  hours  of  night  time  (see  above),  and  in  the  Netherlands  and 
Bulgaria, at least three hours of night time. In France, under the law for freight operators ‘any 
work between 22 pm and 5 am is considered night work’; and the same applies in Hungary. 
This definition is more in favour of employees. There are some countries, such as the United 
Kingdom,  where  the  night  shift  is  not  explicitly  mentioned.  In  Luxembourg,  the  definition 
appears to be less favourable for employees: it is any shift which starts  between 01h00 and 
04h00  (for  drivers).  This  means  that  traditional  night  shifts  from  23h00  to  7h00  are  not 
defined  as  night  shifts.  On  the  other  hand,  early  morning  shifts  that  start  before  04h00 are 
included. 

3.6. 

Clause 8 — Checks 

It is necessary to establish a system that keeps records of daily working hours and rest periods 
for at least 1 year. 

Transposition of the requirements on checks 

All  Member  States  that  have  transposed  the  directive  appear  to  impose  this  obligation  of 
keeping  a  record  (for  at  least  one  year)  of  daily  working  time  and  rest  periods  for  mobile 
workers. Comments have been received noting problems with the practical implementation of 
this obligation. It appears that it can be difficult for authorities to have rapid access to records 
kept  in  other  countries  and  to  obtain  a  full  overview  where  drivers  are  working  for  several 
operators. 

Penalties  have  been  determined  by  most  Member  States,  but  not  by  Hungary,  Poland  or 
France  (in  the  case  of  the  incumbent  company).  French  law  relating  to  other  (private) 
companies in the area of rail freight does impose penalties. 

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4. 

ASSESSMENT OF THE PRACTICAL EFFECT OF THE PROVISIONS OF THE DIRECTIVE 

4.1. 

Towards the Single European Railway Area — the importance of interoperable 
cross-border services 

In its White Paper ‘Roadmap to a Single European Transport Area — Towards a competitive 
and resource efficient transport system’5, the Commission sets out ten goals for a competitive 
and resource-efficient transport system. One of these goals is that ‘30 % of road freight over 
300 km should shift to other modes such as rail  or  waterborne  transport  by  2030,  and  more 
than 50 % by 2050’ 

However, according to the White Paper, the true internal market for rail services, i.e. a Single 
European  Railway  Area,  has  not  yet  been  achieved.  The  objective  for  the  next  decade  is  to 
create  a  genuine  Single  European  Transport  Area  by  eliminating  all  remaining  barriers 
between  modes  and  national  systems,  easing  the  process  of  integration  and  facilitating  the 
emergence  of  multinational  and  multimodal  operators.  A  fourth  Railway  Package  is  being 
considered for this purpose. Railway systems are so divergent that the existence of barriers to 
such  services,  other  than  different  requirements  on  working  conditions,  has  a  significant 
impact  on  the  prevalence  of  interoperable  cross-border  services.  A  railway  undertaking 
wanting to run a transport service that crosses one or more borders comes up against a range 
of technical, legal and administrative barriers.  

Rail  freight  transport  in  the  EU  has  been  completely  liberalised  since  the  start  of  2007,  for 
both  national  and  international services.  This  means  that  any  licensed  EU  railway  company 
with  the  necessary  safety  certification  can  apply  for  capacity  and  offer  national  and 
international freight services by rail throughout the EU. This has been accompanied in 2010 
by the approval of  regulation  913/2010 concerning a European rail network for competitive 
freight. This regulation lays down rules for the establishment and organisation of international 
rail freight corridors and sets out an initial list of long-distance freight corridors. The market 
for international rail passenger services in the EU has been liberalised since 1 January 2010. 
The market for purely national rail passenger services has not yet been opened up to cross-
border  competition.  Freight  services  have  to  share  the  TEN-T  with  high  speed  passenger 
services as well as with conventional passenger trains. The deployment of ERTMS facilitates 
the  integration  of  services  which  are  very  different  in  terms  of  commercial  speeds,  journey 
distances and time requirements. 

In  legal  terms,  for  a  railway  undertaking  to  be  able  to  enter  the  international  market  and 
actually cross the border with a locomotive or drivers, the following is needed: 

Rolling-stock  approval,  in  particular  of  locomotives,  which  is  carried  out  at  Member  State 
level; 
(Separate) safety certificates per Member State covered by the services; and 
Driving licences for train drivers. 

Since  27  October  2011  it  is  compulsory  for  train  drivers  to  have  an  international  driving 
licence and certificate (Directive 2007/59). 

Moreover,  in  order  to  be  in  a  position  to  provide  cross-border  services,  many  technical 
conditions  relating  to  the  operation  of  international  services  still  need  to  be  met,  in  both 
passenger and freight transport (track gauges,  electrification,  signalling and safety systems). 
Out of a total of 37 borders between Member States, there are 35 country pairs where railways 

5 

COM/2011/0144 final. 

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meet at the border. However, taking all the technical issues into account, in 2011 there were 
19 country pairs where passenger trains crossed the border and 17 country pairs where freight 
trains  crossed  the  border.  EU  legislation  based  on  the  interoperability  and  safety  directives 
addresses these technical issues. 

While  it  only  takes  a  few  minutes  to  change  drivers,  it  takes  longer  to  change  a  train’s 
locomotive.  Railway  undertakings  (especially  the  private  ones)  will  normally  undertake  a 
cost/benefit  analysis  before  establishing  a  service  with  cross-border  drivers.  A  cost/benefit 
analysis will take into account the volume and frequency of trains crossing the border and the 
length of the routes, the costs and availability of interoperable locomotives (the advantages of 
using  an  old  locomotive  instead  of  a  new  one  may  also  be  a  factor)  and  labour  costs 
(additional training for licences, salaries and costs of sleeping abroad). However, the decision 
is  not  always  based  on  a  cost/benefit  analysis.  Among  the  more  traditional  incumbents  in 
passenger  transport,  agreements  may  still  be  valid  for  train  services  between  two  countries 
that require a change of locomotive and driver at the border. 

4.2. 

Implications of interoperable cross-border railway services for staff mobility 

The  functioning  of  interoperable  cross-border  services  in  the  railway  sector  is  critically 
conditioned by work organisation arrangements. Not all imply staff crossing the border with 
the train. There are, in fact, five options: 

Company employs staff in different countries: When an operator has staff based on both sides 
of the border, the personnel is changed at the border and only the train crosses it. 

Company hires staff from other companies or from a temporary work agency: Here, too, it is 
the train, but not its crew, which crosses the border. 

Partnership with another company — staff do not cross the border: This third option involves 
a  partnership  with  another  company  to  share  a  specific  international  route,  where  each 
company  is  responsible  for  employing  personnel  in  their  country,  although  they  work  with 
interoperable locomotives. 

Partnership  with  another  company  —  staff  cross  the  border:  Another  model  involves  a 
partnership between operators of bordering Member States, where both operators exploit the 
whole route without changing personnel at the border. 

Own staff cross the border: In the last option the operator has its own staff crossing the border 
on  an  interoperable  service  for  more  than  15  kilometres  beyond  the  border.  There  are  two 
possibilities:  staff  drive  across  the  border  only  for  as  long  as  it  remains  possible  to  return 
home on the same day, or staff continue further across the border and rest away from home. 

In the first three options, the company’s own staff do not cross the border and the Directive is 
not  applicable.  The  company  is  therefore  only  bound  by  domestic  rules.  As  a  result,  the 
Directive’s  restrictions  on  the  number  of  rests  away  from  home  do  not  apply,  although  the 
distances  and  journeys  within  some  Member  States  can  be  long.  It  then  depends  on  the 
national  rules  and  collective  agreements  whether  constraints  are  lower  than  under  the 
Directive.  Another  issue  that  arises  in  the  case  of  personnel  working  internationally  is  the 
salary  supplement/compensation  which  is  standard  for  international  work  in  many  Member 
States. Moreover, companies do not have to have two safety certificates for their drivers and 
drivers do not need to speak additional languages. 

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It  is  worth  underlining  the  differences  between  cross-border  services  and  cabotage.  For  the 
purposes  of  this  document,  cross-border  services  refer  to  train  services  which  start  in  one 
country  and  either  end  in  another  country  or  serve  stations  in  another  country,  before 
returning  home  as  part  of  that  single  service.  In  the  case  of  cabotage  services,  a  foreign 
operator  runs  a  service  that  starts  and  ends  in  the  same  country.  In  the  latter  case,  the 
Directive does not apply. Although there is also a cross-border element here, namely the fact 
that the operator managing the service is located in a different country from the one in which 
the service occurs, it is not a cross-border service for the purposes of this Directive, because 
the train itself does not cross the border. 

It is only under the last two options that staff members cross borders and it is only then that 
the rules of the Directive apply. Hence, there are many possibilities for operators to run cross-
border  services  without  staff  crossing  the  border  with  the  train,  and  hence  many  instances 
where the Directive does not apply to a cross-border service. 

Furthermore, for the Directive to apply to a service, there must be staff capable of manning 
such a service who can actually work across borders. The total number of locomotive drivers 
in the EU authorised to operate in at least two countries has been estimated6 at between 5 000 
and  7 000,  representing  less  than  10 %  of  the  total  number  of  train  drivers  in  the  European 
Union, which is approximately 93 000. It is more difficult to estimate how many other cross-
border  workers  there  are.  The  number  of  conductors7  is  estimated  at  6 000,  based  on  the 
assumption  that  for  every  driver  in  passenger  transport  there  are,  on  average,  two  active 
conductors. However, most of these conductors will only work cross-border for part of their 
shifts. Apart from the conductors, some passenger trains have other staff on board who serve 
passengers. Thee are bar staff, on-board catering staff in the restaurant car or night train staff 
making  beds  and  serving  breakfast.  There  are  no  estimates  relating  to  the  number  of  such 
staff. 

Forecasts  suggest  a  steady  increase  in  cross-border  services,  as  a  result  of  reductions  in 
technical barriers and an increase in interoperable rolling-stock. This is taking place not just 
with  a  view  to  cross-border  services  but  also  as  part  of  the  normal  process  of  renewal  and 
replacement  of  old  equipment.  However,  a  key  factor  for  the  future  level  of  cross-border 
railway services will be the extent to which this mode of transport will be able to gain a share 
of the market from other modes, such as air travel or road transport. 

Furthermore, one effect of EU rail policy may be that the European rail market will become 
increasingly  integrated  through  mergers  and  acquisitions.  This  would  result  in  more 
European-scale operators, competing with each other at a European level. 

6 
7 

See the abovementioned study commissioned in support of this report. 
The train crew that verifies (and in some cases sells) tickets on board passenger trains. 

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4.3. 

The social impact of the Directive 

In all, 14 Member States (Bulgaria, Hungary, Romania, Austria, Belgium, Germany, Ireland, 
the  Netherlands,  the  United  Kingdom  including  Northern  Ireland,  Sweden,  Greece,  Italy, 
Portugal  and  Spain)  have  increased  the  level  of  protection  of  workers  in  the  course  of  the 
Directive's transposition. The social impact has been  higher in  situations where the national 
regulations  for  cross-border  transport  which  existed  before  the  implementation  of  the 
Directive  offered  less  protection  for  employees. Some companies, for  example,  have  had to 
decrease  driving  time  from  10/11  hours  to  9  hours  during  the  day  and  8  during  the  night, 
which  should  reduce  health  and  safety  risks.  The  fact  that  the  Directive  limits  driving  time 
might  prevent  pressure  by  employers  pushing  for  longer  working  hours  in  the  future  and 
thereby protect employees (and companies) from the risks that come with long working hours 
and fatigue. There appears to have been no instance of regression. 

Most  Member  States  have  the  same  legislation  for  national  and  international  railway 
personnel.  Some  have  a  different  legislation  for  national  railway  personnel.  For  example, 
there  are  differences  concerning:  daily  rests  at  home  (the  Netherlands  and  the  United 
Kingdom  do  not  provide  for  it  in  the  case  of  domestic  services);  driving  time;  breaks  (the 
United Kingdom imposes a shorter period for domestic services); and rest away from home 
(the Czech Republic, Lithuania, the Netherlands and the United Kingdom do not require it in 
the case of domestic services). 

The most critical issue for the implementation of the Directive has been the number of daily 
rests  away  from  home.  The  Agreement  provides in  Clause  4  that  any  rest  away  from  home 
must be followed by a daily rest at home (see 3.2 above). However, social partners at national 
or  enterprise  level  may  agree  upon  a  second  rest  away  from  home.  This  second  rest  away 
from home has been negotiated in only eight Member States: Germany, Hungary, Romania, 
Slovenia,  the  Netherlands,  France,  Italy  and  Portugal.  However,  as  mentioned  above  in 
section  3.2,  it  often  only  covers  some  operators  in  those  countries.  This  issue  has  proved 
divisive among social partners in the railway sector and no agreement has been possible at EU 
level. 

The restriction on the number of daily rests away from home is felt in particular by smaller 
operators wishing to exploit long routes. Larger operators appear to have more staff resources. 
They often have staff on either side of the border or ‘traditional cooperation agreements’ with 
other operators in other countries. These alternatives reduce the impact of this constraint. For 
most employers, any increase in the number of permitted consecutive rests away from home 
would  boost  managerial  freedom  and  flexibility.  For  others,  based  in  countries  with  lower 
salaries, it would also make it easier to extend their geographical reach and compete in more 
regions. 

For most employee representatives, the period spent away from home is regarded as having a 
particularly  negative  impact  on  work-life  balance.  However,  in  those  countries  where 
domestic  routes  are  long  and  it  is  common  to  spend  several  days  away  from  home  for 
domestic  rail  services,  the  impact  of  any  change  with  respect  to  this  issue  would  be 
comparatively lower. In addition, according to some trade union representatives, opportunities 
to earn higher pay while manning services abroad could increase the attractiveness of working 
abroad for a longer continuous period of time. 

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This issue may become more important in the case of Rail Freight Corridors (see Regulation 
913/2010  concerning  the  establishment  of  a  European  rail  network  for  competitive  freight), 
which tend to be long cross-border routes. 

4.4. 

The economic impact of the Directive 

As  mentioned  in  point  4.2,  sending  staff  across  borders  is  only  one  way  of  operating 
internationally.  Hence,  the  Directive  is  not  applicable  to  all  international  rail  transport 
companies  or  routes.  In  addition,  the  number  of  workers  involved  is  small  compared  to  the 
rail  sector's  total  workforce.  Furthermore,  any  economic  impact  of  such  rules  is  limited, 
because,  on  average,  human  resources  account  for  an  estimated  8.5 %  of  the  total  operating 
costs  of  a  cross-border  rail  freight  business.  Any  increase  in  staff  costs  resulting  from  the 
Agreement would therefore have a negligible influence compared with other operating costs, 
such as energy or infrastructure. 

Combined  with  the  pre-existing  level  of  protection,  this  appears  to  result  in  a  limited 
economic  impact.  Relatively  speaking,  the  cost  impact  of  the  Directive  has  been  somewhat 
higher  in  situations  where  pre-existing  national  regulations  for  cross-border  transport  were 
less  protective  for  employees  and  the  entry  into  force  of  the  Directive  meant  that  an 
adjustment was needed.  

As  regards  the  impact  on  the  further  economic  development  of  railway  transport,  the 
regulatory changes resulting from the Directive play a much smaller role than factors such as 
technical developments in the rail sector, the process of liberalising the rail market or the free 
movement  of  workers  within  the  EU.  There  are  much  more  important  factors  for  the 
organisation of the rail sector and the allocation of personnel on cross-border services than the 
Directive. However, where technical barriers are removed and markets liberalised, operators, 
in particular smaller freight railway operators, may feel constrained by the restrictions set out 
in  Clause  4  with  respect  to  rest  away  from  home.  This  could  be  an  indication  that  the  full 
impact  of  the  Directive  will  only  manifest  itself  when  technical  barriers  have  been  further 
reduced and more international services actually emerge. 

Although the economic impact may therefore be considered to be limited, the Directive has 
created a minimum standard, established by an agreement of the social partners. The Directive 
ensures a level playing field, which is an important goal in itself. Finally, by supporting job 
quality for mobile workers, the Directive also helps improve the quality of service. 

4.5. 

Conclusions regarding the impact of the Directive 

Generally  speaking,  the  social  and  economic  impact  appears  to  be  limited.  The  most 
important clause in this regard is clause 4 on rest away from home. However, even here the 
impact  on  employers  is  mitigated  by  the  availability  of  alternative  ways  of  organising 
international rail transport which do not require staff to cross a border on board the train they 
are  manning.  Most  employee  representatives  are  not  in  favour  of  increasing  the  number  of 
rests  away  from  home,  as  it  is  considered  to  have  a  negative  effect  on  the  balance  between 
work and family life. However, in a few cases (Hungary, Romania, Slovenia, the Netherlands, 
France, Italy and Portugal) there has been a collective agreement on a second consecutive rest 
away from home. 

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5. 

ASSESSMENT OF POTENTIAL ADMINISTRATIVE BURDENS 

In view of the nature of the regulations already in force when the Directive was adopted, the 
Directive has not really increased existing levels of administrative burdens. 

Most  of  the  provisions  limit  the  availability  of  staff,  thus  constraining  managerial  freedom 
and flexibility. They are not administrative burdens, since they do not require administrative 
formalities.  Only  those  provisions  regarding  records  could  be  considered  to  imply 
administrative burdens, to the extent that employers are obliged to take additional measures 
involving formalities that would not be necessary if there were no such requirements. 

The  benefits  to  society  as  a  whole  resulting  from  these  obligations  outweigh  the 
disadvantages,  considering  the  catastrophic  consequences  that  railway  accidents  caused  by 
fatigue can bring about. 

6. 

ISSUES  RAISED  BY  MEMBER  STATES  AND  SOCIAL  PARTNERS  DURING  THE 
CONSULTATIONS RELATING TO THIS REPORT 

Member States have not reported problems, nor raised issues nor made particular requests. 

The  social  partners  were  formally  consulted  on  the  draft  report.  Two  of  them  provided 
feedback  in  July  2012.  As  far  as  they  are  concerned,  the  only  controversial  issue  involving 
comments is Clause 4 on daily rest away from home. 

CER,  the  Community  of  European  Railway  and  Infrastructure  Companies,  notes  the  legal 
certainty  that  the  Directive  has  brought  about.  It  points  out  that  most  employers  want  to 
increase the number of rests away from home and highlights the obvious limitations that this 
clause imposes on the flexibility of operators, in particular smaller ones. It seeks to re-open 
negotiations on Clause 4, although it acknowledges that the official position of the European-
level social partners on the employees’ side is to oppose such a change, even if some national 
employee  representatives  seem  to  have  fewer  problems  with  an  increase  in  the  consecutive 
number of daily rests away from home. The CER also notes the need for a level-playing field 
for competing modes of transport and that no other mode of transport has such binding social 
regulation. 

the  European  Transport  Workers’  Federation,  welcomes 

The  ETF, 
that 
implementation  of  the  agreement  has  increased  the  level  of  protection  of  workers  in  a 
significant number of Member States. It notes that, currently, it is only in cabotage operations 
(with  triangular  or  polygonal  routes)  that  a  continuous  stay  abroad  for  more  than  48  hours 
might be necessary. The ETF does not see Clause 4 as a barrier to cross-border services and 
therefore sees no need to change it. The ETF is concerned that 5 Member States implemented 
the rules for drivers only and not for other on-board staff. It also believes that action is needed 
on  the  issue  of  checks  to  clarify  the  tasks  and  responsibilities  of  authorities  and  to  improve 
cross-border administrative cooperation. The use of tachographs is suggested. 

the  fact 

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7. 

CONCLUSIONS 

The main impact of Directive 2005/47/EC lies in its role as a safety net. It prevents a race-to-
the-bottom on working conditions, particularly working time, by imposing a harmonised floor 
below  which  no  operator  may  go.  It  ensures  a  level  playing  field  and  prevents  unfair 
competition. 

There is no evidence to show that interoperable cross-border services in the railway sector are 
significantly hampered by the rules established by the Directive. This may partly be explained 
by the limited incidence of situations where such rules (staff crossing a border with the train) 
actually apply at the moment. The expected increase in such services, in particular by smaller 
operators, may give these rules more prominence in the future. 

The  Commission  intends  to  take  appropriate  measures  regarding  the  issues  and  problems 
identified in relation to the implementation of the Directive as well as the suggestions made to 
improve the application of the Directive in practice. 

On  the  specific  issue  of  Clause  4  on  daily  rest  away  from  home,  the  Commission  is  of  the 
view  that  the  existing  margins  for  flexibility  have  not  been  fully  exploited  by  both  sides  of 
industry, as there have been fewer collective agreements than expected. The Directive allows 
for  such  agreements  to  specify  more  flexible  conditions  with  regard  to  the  number  of  rests 
away  from  home,  which  may  contribute  to  enhance  the  interoperability  of  cross-border 
services  in  the  railway  sector  and  create  market  opportunities  in  particular  for  SMEs.  The 
Commission therefore urges the social partners at national and EU level to make full use of 
this possibility where required and to resume the negotiation process at EU level which is laid 
down in the footnote in Clause 4 of the Agreement. In this respect, the Commission invites 
the  social  partners  to  take  into  account  in  their  negotiations  the  different  conditions  under 
which  the  passenger  and  freight  railways  operate,  notably  in  terms  of  commercial  speeds, 
journey distances and time requirements. The Commission will closely follow the evolution 
of such negotiations and reassess the situation in two years' time. 

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