REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the application of the derogation provided in Article 8(6a) of Regulation (EC) N° 561/2006 of the European Parliament and of the Council (12-day rule)
Date: 2014-06-06
Institutions: European Commission
Subjects: bus, carriage of passengers, derogation from EU law, international road transport, weekly rest period













EUR-Lex - 52014DC0337 - EN











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52014DC0337

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the application of the derogation provided in Article 8(6a) of Regulation (EC) N° 561/2006 of the European Parliament and of the Council (12-day rule) /* COM/2014/0337 final */









REPORT FROM THE COMMISSION TO THE
EUROPEAN PARLIAMENT AND THE COUNCIL
on the application of the derogation
provided in Article 8(6a) of Regulation (EC) N° 561/2006 of the European
Parliament and of the Council (12-day rule)

1.                      
Introduction

The
European Union (EU) has established a framework of social rules for goods and
passenger road transport, with the aim of avoiding distortion of competition,
improving road safety and ensuring adequate health and safety conditions of
road transport mobile workers.  Regulation (EC) No 561/2006 of the European
Parliament and of the Council of 15 March 2006 on the harmonisation of certain
social legislation relating to road transport and amending Council Regulations
(EEC) N° 3821/85 and (EC) N° 2135/98 and repealing Council Regulation (EEC) N°
3820/85 ("Regulation (EC) N° 561/2006")[1]
provides for a common set of EU minimum requirements on, inter alia, driving
times, breaks and rest periods. These rules apply to all professional drivers,
be they employed or self-employed, engaged in passengers or goods transport
operations, subject to specific exceptions and national derogations. 
As
a general rule Regulation (EC) N° 561/2006 provides in its Article 8 that a
driver should start a weekly rest period no later than at the end of six
24-hour periods from the end of the previous weekly rest. However, Regulation
(EC) No 1073/2009 of the European Parliament and of the Council of 21 October
2009 on common rules for access to the international market for coach and bus
services, and amending Regulation (EC) N° 561/2006 (recast)[2]
introduced a derogation from this weekly rest provision. The new Article 8(6a)
allows drivers, who are engaged in a single occasional service of international
carriage of passengers, to postpone the weekly rest period for up to 12
consecutive 24-hour periods (hereinafter called the “12-day rule”) following a
previous regular weekly rest, provided that specific conditions are met. 
In
order to address certain concerns expressed at the time of its adoption,
Article 8 (6a) of Regulation (EC) No 561/2006 specifies that the Commission
should closely monitor the use made of this derogation and should draw up a
report assessing the consequences of the derogation in respect of road safety
as well as social aspects and, if deemed appropriate, to propose amendments to
this Regulation in this respect. The present report follows this monitoring
obligation and provides for an overview of the use of the 12-day rule
derogation in the Member States and its perceived impacts in the context of the
Regulation's main objectives.

2.                      
Background

The
12-day rule was first introduced by Council Regulation (EEC) No
3820/85 on the harmonization of certain social legislation relating to road
transport[3].
Paragraph 1 of Article 6 of that Regulation provided that: 
(...)
A
driver must, after no more than six daily driving periods, take a weekly rest
period as defined in Article 8 (3).
The
weekly rest period may be postponed until the end of the sixth day if the total
driving time over the six days does not exceed the maximum corresponding to six
daily driving periods.
In
the case of the international carriage of passengers, other than on regular
services, the terms 'six' and 'sixth' in the second and third subparagraphs
shall be replaced by 'twelve' and 'twelfth' respectively.
Member
States may extend the application of the previous subparagraph to national
passenger services within their territory, other than regular services.
This
Regulation was repealed by Regulation (EC) No 561/2006, which did not include
such a provision. Therefore the 12-day rule was no longer applicable as from 11
April 2007 when Regulation (EC) No 561/2006 entered into force. This
modification triggered extensive discussions among various stakeholders. It was
perceived as a negative development by the European coach tourism industry,
which systematically pursued an agreement between the social partners in order
to reinstate the 12-day rule. The challenge was to meet the concerns of the
industry with regard to the efficient and cost-effective organisation of
tourist trips by coach and, at the same time, not compromising road safety and
the well-being of drivers.
A
detailed presentation of the issue in question and of the relevant arguments
has been reflected in two studies, which were conducted at the time. The study
“The New Regulation on Driving and Rest Times: The Impact of the Abolition
of the “12 Days Exception” for Buses”[4],
commissioned by the European Parliament, provided an assessment of impacts of
the abolition of the 12-day rule in the international transport of passengers
by road, especially in relation to economic, social and safety effects. In
summary, the study argued that the abolition of the 12-day rule would have
strong negative economic impacts, without having significant positive safety or
social benefits. Among the policy options examined, the one recommended was the
reintroduction of the derogation with certain accompanying measures related to
safety of tours and to drivers’ working conditions. The accompanying measures
proposed concerned, inter alia, the effective enforcement of the use of the
digital tachograph, the enforcement of the rotation of drivers in firms engaged
in international trips in order to limit excessive workloads, the enforcement
of Directive 2003/59/EC on the initial qualification and periodic training of
drivers of certain road vehicles for the carriage of goods or passengers[5] and
the partial reintroduction of the 12-day rule for transport undertakings that
comply with specific quality parameters and only for vehicles equipped with a
digital tachograph. Following this study the European Parliament voted an ‘own
initiative report’ to reinstate the 12-day derogation.
A
critical review of the above-mentioned study was presented in the “Study of
passenger transport by coach”[6],
which was subsequently commissioned by the European Commission. The review
concluded that the initial European Parliament study might have significantly
overestimated the economic impact of the abolition of the 12-day rule, and also
possibly underestimated the social impacts. The review concluded that the
social and environmental impacts of the withdrawal of the 12-day rule are
small, with a certain doubt as to whether the net effect of these impacts would
be positive or negative. The two studies agreed that, though difficult to be
quantified, the impact on road safety is rather small, as coaches are already a
relatively safe mode of transport.
The
overall discussions led to the reintroduction of the 12-day rule with certain
additional requirements. Article 29 of Regulation (EC) No 1073/2009 provides
that:
"In
Article 8 of Regulation (EC) No 561/2006, the following paragraph shall be
inserted:
"6a.
By way of derogation from paragraph 6, a driver engaged in a single occasional
service of international carriage of passengers, as defined in Regulation (EC)
No 1073/2009 of the European Parliament and of the Council of 21 October 2009
on common rules for access to the international market for coach and bus
services, may postpone the weekly rest period for up to 12 consecutive 24-hour
periods following a previous regular weekly rest period, provided that:
(a)
the service lasts at least 24 consecutive hours in a Member State or a third country to which this Regulation applies other than the one in which the
service started;
(b)
the driver takes after the use of the derogation:
(i)
either two regular weekly rest periods; or
(ii)
one regular weekly rest period and one reduced weekly rest period of at least
24 hours. However, the reduction shall be compensated by an equivalent period
of rest taken en bloc before the end of the third week following the end of the
derogation period;
(c)
after 1 January 2014, the vehicle is equipped with recording equipment in
accordance with the requirements of Annex IB to Regulation (EEC) No 3821/85;
and
(d)
after 1 January 2014, if driving during the period from 22,00 to 06,00, the
vehicle is multi-manned or the driving period referred to in Article 7 is
reduced to three hours.
The
Commission shall monitor closely the use made of this derogation in order to
ensure the preservation of road safety under very strict conditions, in
particular by checking that the total accumulated driving time during the
period covered by the derogation is not excessive. By 4 December 2012, the
Commission shall draw up a report assessing the consequences of the derogation
in respect of road safety as well as social aspects. If it deems it
appropriate, the Commission shall propose amendments to this Regulation in this
respect.
The
12-day rule, in its current form, became applicable as of 4 June 2010. Since
then there have been certain discussions concerning the requirements under
which this provision can be applied and in particular the requirement for the
driver to be engaged in an international transport operation. During the recent
revision of Regulation (EEC) No 3821/85[7]
the European Parliament proposed the application of the rule also to domestic
trips arguing that the impact on road safety is not related to the
international nature of the transport operation. During the legislative process
the Member States did not consider it appropriate to introduce this
modification and the provision of Article 8(6a) remained unchanged.
In
the same context, during its accession negotiations, Iceland requested a
derogation from this provision in order to allow the application of the rule
also for domestic transport. The arguments supporting this request were related
to the geographical circumstances of the country, which is located far away
from the European mainland, the exceptionally sparse population and the
importance of tourism industry for the Icelandic economy. During the
negotiations the Commission rejected this request arguing that such a derogation
is not applicable to other Member States and that despite the geographic
specificities, the domestic transport in Iceland could be organised in such a
way so as to respect the general provision that a rest is taken after six
24-hour periods of driving. In addition, tourism in Iceland is not affected by
the provision in question, as it is only marginally exposed to international
competition.

3.                      
Data Collection

In
order to collect the necessary information for this report, the Commission
enquired of the Member States a number of questions in July 2012. The same
questionnaire was also sent to the EU social partners in road transport, namely
to the International Road Union (IRU) as the employers' organization and to the
European Transport Workers' Federation (ETF) representing the workers in the
sector.
The
questionnaire covered a number of topics in order to assess the possible
impacts of the derogation in the areas mentioned in Regulation (EC) No
561/2006. Each question was formulated in a way so that both quantifiable and
descriptive answers could be provided and the Member States/social partners had
the possibility to reply in the way of their choice.
The
first two questions aimed at assessing whether the Member States are monitoring
the use of the derogation either by keeping statistical data or by other
sources. The third question was dedicated to road safety and impacts of the
derogation on it. Question number four addressed the issue of encouraging
tourism and the use of environmentally friendly means of transport, while
question number five focused on the effect of the derogation on fair
competition in the road transport sector. The well-being of drivers was
requested to be assessed by question number six. In the two final questions the
Member States/social partners were asked to provide their general perception of
the provision in question as well as any additional comments or proposals.
By
the end of 2013 the Commission received the replies from 23 Member States and
from the employers' and workers' organizations mentioned above. No further
information was received, following that date, despite reminders. An aggregated
table with the answers received is included in Annex II to this report.  It is
noted that Romania sent replies from both the Romanian Road Transport Authority
(ARR) and the Road Transport Control (ISCTR). Both institutions have had
control responsibilities since the application of the rule (ARR up to 4
December 2011 and ISCTR after that date).

4.                      
Analysis of the Data

Out
of the 23 Member States that provided answers to the questionnaire, eight did
not provide figures for questions n° 2-7, on the grounds of lack of information
to support a quantifiable answer. The limited amount of quantifiable data
received (15 cases) does not allow for an in-depth statistical analysis.
However, based on the answers given and in conjunction with the descriptive
parts of the questionnaire, various conclusions can be drawn. The analysis
below follows the structure of the questionnaire and the elements examined by
each question.

4.1.                
Availability of data - Frequency of use of the
derogation

None
of the Member States that provided answers to the questionnaire retain
statistical data on the application of the 12 day rule or on the compliance
with driving time limits during the period covered by the derogation. The
legislation in force does not impose such an obligation on Member States and
this lack of monitoring by the competent national authorities deprives them of
the possibility to have a comprehensive overview of the current situation in
the field in question. Despite the absence of an obligation to systematically
monitor the use of the derogation some Member States provided the corresponding
figures, according to which in most cases the derogation is not intensively
used. In five Member States (EE, LT, LV, LU, SE) the frequency of use is
quantified in the middle of the scale indicated (3 in a scale from 0 to 5)
while in all other cases the reported figures indicate a less intensive use of
the provision. The explanations provided for the limited use of the rule include
the restrictive nature of the provision (international single trip and extended
rest period afterwards) and the lack of knowledge of the provision by the
operators/drivers. 

4.2.                
Impact on road safety

The
majority of Member States that provided quantified replies on this question
indicated that the provision has no negative impact on road safety. On the
other hand, two Member States (BE, LT) indicated a strong negative impact (4 in
a scale from 0 to 5), which, however, is not based on accident statistics, but on
the presumption that continuous driving for 12 days may have a direct impact on
a driver’s fatigue, which will consequently endanger road safety. The same
approach has been followed in the reply by the ETF, which indicated an even
stronger negative impact on the basis of the alleged fatigue of the driver. The
rest of the replies received indicated a minimum negative impact, always based
on a similar assumption and not on actual accident data. The IRU indicated a
zero impact on road safety underlining that during such trips the actual daily
driving time is rather short.

4.3.                
Effect in encouraging tourism and the use of
environmentally friendly means of transport

While
certain Member States (AT, BE, DK, NL, PL, ES) and the ETF see no effect on
tourism and the environment, the other Member States that provided quantified
replies on this question indicated a positive effect. Three Member States (LU,
RO, SE) indicated a very strong positive effect (4-5 in a scale from 0 to 5)
with the justification that the rule allows for lower costs for the passengers,
better organisation of the trips and improved quality of the coaches used in
such operations. For similar reasons, another four Member States (BG, EE, LV, SI) indicated an important positive effect (3 in a scale from 0 to 5). The IRU pointed
out a narrow positive effect due to the restrictive nature of the derogation,
which limits its attractiveness to transport undertakings.

4.4.                
Effect on competition

Most
of the Member States and the IRU are neutral with regard to this aspect.
However, one Member State (BG) indicated a rather negative effect in terms of
distortion of competition, based on the fact that the derogation is only
applicable to occasional international operations and not to regular ones thus
creating discrimination between the two. Five other Member States (HU, LT, LV, LU, SE) are much more positive claiming that the flexibility provided by the
derogation offers increased opportunities for undertakings to operate without
infringing the rules and even allows small enterprises to benefit equally.

4.5.                
Impact on well-being of drivers

In
this question the workers' side has taken a very strong negative position,
arguing that the derogation allows for long trips that directly affect the
health of drivers, mainly due to accumulated fatigue. In a similar approach,
but to a much more limited extent, three Member States (AT, BE, RO[8])
also reported a negative effect. On the contrary some Member States (EE, LU, RO[9],
SE) perceive the issue from a different angle by stating that the provision
allows the drivers to take longer uninterrupted rest periods, usually at their
homes with their families. In a different approach, the employers consider the
long compensation rest periods to be taken after the use of derogation, as a
loss of income for drivers, especially during short touristic seasons and they
prefer the derogation in its previous form.

4.6.                
General perception of the provision

In
line with the answers given in the individual aspects of the questionnaire, the
majority of the Member States that provided quantified replies on this question
had a positive overall perception of the provision and in some cases a very
strong positive perception (HU, LU, SE, LV, EE). The IRU has a less positive
approach, considering that the current version of the derogation is less
attractive than the previous one due to its too restrictive character. The
Member States with a negative perception of the rule are mainly those with
concerns about road safety issues (AT, BE, LT). The ETF sees no added value in
this derogation and argues that it should have a limited application in order
to control its negative effects and that no further flexibility should be
allowed. 

4.7.                
Additional comments/proposals

In
this part of the questionnaire the Member States were able to freely express
their comments and proposals concerning the derogation in question. Despite the
liberty provided, the responses received were rather limited. A group of Member
States (BG, DE, LU, UK) without necessarily sharing the same objectives, appear
ready to consider more flexible criteria and a certain extension of the
derogation either to domestic operations or to international regular services.
One Member State (ES) claimed that the derogation should be made applicable to
the transportation of goods, which would improve a company's efficiency by
having the vehicle back at its base much earlier and would enhance working
conditions by enabling drivers to spend their weekly rest at home. Other Member
States are either against such a perspective (AT) or consider that the
provision should be changed in line with goods transport (LT). Other issues
raised are the practical problems with regard to road safety (BE) and to the
compatibility with EU social rules and those of the European Agreement
concerning the Work of Crews of Vehicles Engaged in International Road
Transport (AETR) (FI). The ETF is strongly opposed to the development of any
separate social provisions for passenger transport, noting that such a
development would lead to more complex regimes, massive enforcement problems
and would compromise the overall objectives of the driving and rest time rules.
On the other hand the IRU argues that the industry urgently needs more
practical arrangements and greater flexibility for all types of national and international
services, and strongly supports the extension of the scope of the derogation to
cover domestic operations as well. 

5.                      
Conclusions

Despite
the lack of factual data, following the analysis presented above, certain
conclusions can be drawn with regard to impacts of the application of the
derogation on road safety and working conditions in the field of international
passenger transport services. 
According
to the opinions of most of the Member States and the employer's side, there is
no concrete indication of a real negative effect on road safety. The workers
have expressed the view that the 12 consecutive daily driving periods create
accumulated and disproportionate fatigue of the driver. However, no factual
evidence was provided proving the worsening of road safety due to the use of
derogation. On the other hand, the employers are of the opinion that in this
type of operation the daily driving time is usually shorter than the maximum
limits set by legislation. The specificity of international coach tours was the
main concept behind the introduction of the derogation.
Concerning
the other areas examined, namely: tourism, the environment, undistorted
competition and the well-being of drivers, the responses received include both
positive and negative assessments, with predominance of positive aspects
indicated, except on the issue of the driver's quality of life. On the latter
one, both sides of the industry indicated the negative consequences, but for
different reasons and affecting different aspects of a driver's well-being.
Whilst the workers highlighted the negative consequence of the greater fatigue
of drivers due to postponement of the weekly rest, the employers pointed out
the driver's limited possibility for higher income due to a mandatory long
compensation weekly rest after the use of the derogation. The positive aspects
of the derogation included: the reduction of costs for tourists, the use of
better vehicles for such long, international trips, the increased opportunities
for undertakings, including small ones and the better organisation of drivers’
rest periods, with the possibility of spending more time at home. Much of the
criticism concerned the restrictive character of the 12-day rule, whilst the
concept of derogation was acknowledged as valuable.
It
is worth noting the contradicting nature of the answers received to most of the
questions revealing differences in the way the measure is perceived. A very
demonstrative example concerns the views expressed by both sides of the
industry that took part in the questionnaire survey. While the representatives
of the employers identify the additional requirements of the derogation as being
the main obstacle to its proper implementation, the representative of drivers
considers any attempt to water down these provisions or extending the scope of
the derogation as being unacceptable. 
Having
analysed the views expressed by Member States and the social partners, and
bearing in mind certain needs of the market such as simplification of the rules
and cost-effective enforcement, the Commission does not consider it appropriate
to propose any amendments to the relevant legislation. The current regime was
established after long discussions, appears to be operating without substantial
problems and is widely known to the stakeholders. The Commission will continue
its efforts, in cooperation with Member States, to further enhance enforcement
of the existing rules, and in particular with regard to the proper application
of the derogations.
The
Commission invites the Member States and the social partners to continue
monitoring the implementation and the impacts on road safety and social aspects
of the 12-day derogation and may revert to the issue should the need arise.
[1]               OJ L 102, 11.4.2006, p. 1.
[2]               OJ L 300, 14.11.2009, p. 88.
[3]                      OJ L 370, 31.12.1985,
p. 1.
[4]              http://www.europarl.europa.eu/RegData/etudes/etudes/join/2008/405378/IPOL-TRAN_ET(2008)405378_EN.pdf
[5]               OJ L 226, 10.9.2003, P. 4
[6]              http://ec.europa.eu/transport/modes/road/studies/doc/2009_06_passenger_transport_by_coach.pdf
[7]               repealed by Regulation (EU) No 165/2014 of the
European Parliament and of the Council of 4 February 2014 , OJ L 60 of
28.2.2014, p.1
[8]               State Inspectorate for Road Transport Control (ISCTR)
[9]               Romanian Road Transport Authority (ARR)