Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive 2006/22/EC as regards enforcement requirements and laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector
Date: 2017-05-31
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: carriage of goods, carriage of passengers, carrier, digital technology, drivers, driving period, rest period, road transport, speed control, working conditions

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 31.5.2017  COM(2017) 278 final 2017/0121 (COD)   Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive 2006/22/EC as regards enforcement requirements and laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector  {SWD(2017) 184 final} {SWD(2017) 185 final} {SWD(2017) 186 final} {SWD(2017) 187 final}  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

In  the  road  transport  sector,  the  Union  social  rules  contribute  to  achieving  the  policy 
objectives of improving drivers' working conditions, ensuring fair competition between road 
transport companies and enhancing road safety for all road users. Tailoring these rules to the 
needs of the sector and making them easier to apply and enforce uniformly and efficiently is a  
key part of the Commission's strategy to further integrate the road transport market in the EU 
and make the sector fair, efficient and socially accountable, as outlined in the white paper on 
transport of 28 March 20111.  

The  key  social  rules  applying  to  road  transport  include  provisions  on  the  organisation  of 
drivers'  working  time  set  out  in  Directive  2002/15/EC2,  minimum  requirements  for 
enforcement set out in Directive 2006/22/EC, rules on driving times, breaks and rest periods 
under  Regulation  (EC)  No  561/20063  and  provisions  on  posting  of  workers  established  in 
Directive 96/71/EC4 and the enforcement Directive 2014/67/EU5. These legal acts are part of 
a wider effort to improve the working conditions of drivers, ensure fair competition between 
operators and improve the safety of European roads, as well as to ensure a balance between 
the drivers' social protection and operators' freedom to provide cross-border services.  

An ex-post evaluation of the social legislation in road transport and its enforcement, carried 
out  in  2015-20176  as  part  of  the  regulatory  fitness  programme  (REFIT),  concluded  that  the 
rules in place do not effectively and efficiently address the risks of deterioration in working 
conditions and distortions of competition. This is due to shortcomings in the legal framework. 
Certain  rules  are  unclear,  unsuitable  or  difficult  to  implement  or  enforce,  which  results  in 
differences in implementation between Member States of the common rules and creates a risk 
of fragmentation of the internal market.  

The analysis of the problems on the ground show in particular that differences in interpreting 
and applying of Directives 96/71/EC and 2014/67/EU to the road transport sector need to be 
addressed as a matter of urgency. The impact assessment supporting this legislative proposal 
concludes that the posting provisions and administrative requirements do not suit the highly 
mobile  nature  of  the  work  of  drivers  in  international  road  transport.  This  causes 
disproportionate regulatory burdens for operators and creates unjustified barriers to provision 
of  cross-border  services.  The  legal  and  practical  difficulties  in  applying  the  posting rules  to 
road transport sector was highlighted in recital (10) of the Commission proposal of 8 March 
20167  for  amending  Directive  96/71/EC:  Because  of  the  highly  mobile  nature  of  work  in 
international  road  transport,  the  implementation  of  the  posting  of  workers  directive  raises 
particular  legal  questions  and  difficulties  (especially  where  the  link  with  the  concerned 
Member  State  is  insufficient).  It  would  be  most  suited  for  these  challenges  to  be  addressed 

1 
2 
3 
4 
5 
6 

7 

COM(2011)144 final 
OJ L 80, 23.3.2002.p.35 
OJ L 102, 11.4.2006, p. 1 
OJ L 18, 21.1.1997, p.1 
OJ L 159, 28.5.2014, p.11 
The ex-post evaluation covered Regulation (EC) No 561/2006 on driving times, breaks and rest periods, 
Directive 2006/22/EC on the enforcement of the provisions of the Regulation and Directive 2002/15/EC 
on the organisation of the working time of road transport mobile workers. 
COM(2016)128 

EN 

2 

   EN 

                                                 
through sector-specific legislation together with other EU initiatives aimed at improving the 
functioning of the internal road transport market. 

This proposal provides for a holistic approach to addressing the risks of inadequate working 
conditions for drivers, including terms and conditions of employment, and at the same time  
mitigating  the  excessive  regulatory  burdens  on  operators  and  preventing  distortions  of 
competition.  The  overarching  goal  is  to  ensure  a  balance  between  adequate  working 
conditions for drivers and freedom to provide cross-border services for operators.  

• 

Consistency with existing policy provisions in the policy area 

This proposal is a part of a broader ongoing review of the Union road transport legislation. It 
is closely linked with an initiative to improve the clarity and adequacy of the rules on driving 
times, breaks and rest periods set out in Regulation (EC) No 561/2006 and those on the use of 
tachograph set out in Regulation (EU) No 165/2014. It is also related to the ongoing review of 
the market rules on access to the profession of road transport operator (Regulation (EC) No 
1071/2009), access to the international haulage market (Regulations (EC) No 1072/2009) and 
access to the international passenger market (Regulation (EC) No 1073/2009). The social and 
market  rules  form  a  comprehensive  and  coherent  legal  framework,  and  enforcing  them  in  a 
consistent  and  effective  way  is  key  to  creating  a  fair,  safe,  environmentally  and  socially 
sustainable road transport sector. None of the initiatives on their own can effectively address 
the ongoing social and market challenges.  

• 

Consistency with other Union policies 

The  proposal  contributes  to  two  of  the  priorities  of  this  Commission,  notably  creating  “a 
deeper and fairer internal market” and boosting "jobs growth and investment". It is consistent 
with actions aiming to combat social unfairness and unfair competition and to create a social 
framework for new employment opportunities and fair business conditions. 

One  aim  of  the  proposal  is  to  ensure  decent  working  conditions  and  appropriate  social 
protection. It therefore fits with the objectives of the Commission's Social Agenda and with 
the  initiative  on  the  creation  of  an  EU  pillar  of  Social  Rights.  It  is  also  consistent  with  the 
Charter  of  Fundamental  Rights  of  the  European  Union,  Article  31  of  which  lays  down  the 
right to fair and just working conditions.  

The  proposal  contributes  to  the  REFIT  Programme  by  reducing  regulatory  burdens, 
simplifying  and  adapting  certain  rules  to  the  specific  needs  of  the  sector.  It  will  also  make 
enforcement more efficient by making better use of existing control tools and systems. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

This  proposal  amends  Directive  2006/22/EC  and  lays  down  sector-specific  rules  on  the 
posting of workers in relation to Directives 96/71/EC and 2014/67/EU. 

Directive 2006/22/EC is based on what is now Article 91(1) of the Treaty on the Functioning 
of the EU (TFEU), and this provision should also be relied upon for its amendment. 

Directives    96/71/EC  and  2014/67/EU  are  founded  on  (what  is  now)  Article  53(1)  TFEU. 
However,  since  the  rules  proposed  here  exclusively  pertain  to  situations  specific  to  the 
provision of transport services, Article 91(1) TFEU should be relied upon. 

EN 

3 

   EN 

.  

• 

Subsidiarity  

Under  Article  4(2)(g)  TFEU,  the  EU  shares  regulatory  competence  in  the  field  of  transport 
with Member States. However, existing rules can only be amended by the EU legislator. 

Shortcomings in the current legislation mean that Member States implement and enforce EU 
social  rules  differently,  including  those  on  the  posting  of  workers.  Guidelines  or  self-
regulation  by  Member  State  would  not  be  sufficient  to  ensure  that  the  social  rules  in  road 
transport are consistently applied and enforced throughout the EU. And action at EU level is  
therefore justified. 

• 

Proportionality 

The  proposal  does  not  go  beyond  what  is  necessary  to  address  the  identified  problems  of 
inadequate working conditions for drivers and distortions of competition between operators.  

As stated in Section 7.2 of the impact assessment, the proposal puts forward the policy option 
considered  the  most  suitable  and  proportionate,  providing  a  balance  between  enhancing 
working  conditions  for  drivers,  reducing  regulatory  burdens  for  operators  and  enforcing  the 
rules effectively across borders.  

The proposal focuses on simplifying, clarifying and adjusting certain rules to meet the needs 
of the sector. It avoids any unnecessary administrative burden on operators and aims to ensure 
that the requirements for administrative cooperation and mutual assistance between Member 
States are proportionate. The impact assessment concluded that the envisaged policy measures 
will have no disproportionate impact on SMEs. 

• 

Choice of the instrument 

As  the  proposal  makes  a  limited  number  of  amendments  to  Directive  2006/22/EC  and  lays 
down  sector-specific  rules  on  posting  of  workers  in  the  road  transport  sector  in  relation  to 
Directives 96/71/EC and 2014/67/EU, the instrument chosen is also a directive.  

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

The Enforcement Directive 2006/22/EC, together with the Driving Time Regulation (EC) No 
561/2006 and Working Time Directive 2002/15/EC, were subject to a comprehensive ex-post 
evaluation carried out in 2015-20178. This evaluation was supported by an external study9.  

The main issues identified were: 

- divergent interpretation and enforcement of the provision on recording periods when a driver 
is away from the vehicle; 

- violation of the rules on the working time leading to excessive working hours for drivers and 
accumulated fatigue with adverse effects on drivers' health and safety and on road safety; 

8 
9 

see footnote no. 1. 
https://ec.europa.eu/transport/sites/transport/files/facts-fundings/evaluations/doc/2016-ex-post-eval-
road-transport-social-legislation-final-report.pdf 

EN 

4 

   EN 

                                                 
- weak enforcement of the working time provisions and lack of uniform data on monitoring 
and compliance checks; 

- poor administrative cooperation and mutual assistance between the Member States hindering 
consistnet implementation of EU rules; 

- inconsistent national systems assessing the risk ratings of transport undertakings, hindering 
information exchange and data comparison with a view to effective checks;   

- insufficient use of data in risk rating systems hampering effective targeting of controls; 

- unaddressed risks of deteriorating working conditions linked with inadequate pay and social 
protection of drivers working for long periods outside their country of employment.  

The provisions on the posting of workers were not an explicit part of this REFIT evaluation. 
However,  difficulties  with  the  application  of  diverging  national  measures  on  the  posting  of 
workers in the road transport sector showed that the general rules on posting are not suitable 
for the highly mobile workforce in road transport and that the administrative requirements are 
disproportionately burdensome, thereby restricting freedom to provide cross-border services.   

• 

Stakeholder consultations 

Extensive  stakeholder  consultations  were  held  to  prepare  this  proposal,  in  line  with  the 
minimum  standards  for  the  consultation  of  interested  parties  set  out  in  the  Commission 
Communication of 11 December 2002 (COM(2002) 704 final). 

All  the  relevant  stakeholder  groups  contributed  to  the  consultation  process:  national 
authorities,  enforcement  bodies,  associations  representing  road  transport  (freight  and 
passenger) operators, freight forwarders, shippers, SMEs, trade unions, drivers and other road 
transport workers. In particular, the European Social Partners have been extensively consulted 
throughout the entire process. A variety of open and targeted consultation methods and tools 
were used: 

- 
A High Level Conference of 4 June 2015 on a 'Social Agenda for Transport' launched 
a  broad  debate  on  the  social  aspects  in  road  transport;  it  brought  together  some  350 
participants: decision makers, experts in transport, social partners;  

- 
Seminars  at  the  end  of  2015  which  brought  together  industry  stakeholders, 
representatives  of  Member  States  and  the  social  partners  at  the  EU  level.  The  discussions 
focused on how the social and internal market legislation was working in road transport; 

- 
A Road Transport Conference on 19 April 2016 with a workshop dedicated to internal 
market and social  aspects  of road transport.  There were some 400 participants, in  particular 
representatives  of  the  Member  States,  Members  of  the  European  Parliament  and  key 
stakeholders who discussed the objectives and scope of the planned Road Initiatives; 

- 
Five  tailored  surveys  were  launched  to  obtain  the  views  of  the  national  transport 
ministries  (with  a  focus  on  the implementation  and  interpretation  of  the  rules),  enforcement 
authorities  (with  a  focus  on  enforcement  practices,  enforcement  costs  and  benefits), 
businesses (with a focus was on the impact of legislation on the operators in the market), trade 
unions (the focus on the impact of the legislation on drivers) and other stakeholders such as 
industry associations (with a focus on overall views of the effects of the legislation). In total 
1441 responses were received (of which 1269 were from road transport firms).  

EN 

5 

   EN 

- 
Interviews with 90 stakeholders (of which 37 were with drivers) were held to gather 
insights on stakeholders' experiences how enforcement worked and whether it was effective 
and of challenges with compliance.  

A  public  consultation10  between  5  September  and  11  December  2016  to  define  the 
- 
problem  and  identify  potential  solutions.  Of  the  1378  responses  1209  were  from  drivers, 
operators,  shippers,  forwarders  and  169  from  national  authorities,  enforcement  bodies, 
workers' organisations and industry associations; 

A  SME  panel  survey  between  4  November  2016  and  4  January  2017.  The  109 
- 
responses received, provided views on the objectives of the revising the legal framework and 
potential solutions;  

-  
An on-line survey of drivers (the 345 responses provided views on potential measures, 
although, of these, 140 replies were from the Netherlands and 127 from the UK); a survey of 
the national authorities and enforcement bodies (41 responses received from 27 EU Member 
States plus Norway and Switzerland) and an operators' survey (73 responses, however, again, 
this was not fully representative as 58 replies were from Hungary); 

 Interviews  with  7  transport  companies,  9  national  industry  associations,  9  national 

- 
authorities, 4 national workers' unions and 6 European Social Partners.   

The European Social Partners were also regularly informed and consulted in several bilateral 
meetings with the Commission and at regular meetings of the Sectoral Dialogue Committee 
on Road Transport and of the Social Partners' Working Group. 

The consultation activities confirmed the main problems of: 1) inadequate working conditions 
for  drivers;  2)  distortions  of  competition  between  transport  operators;  and  3)  regulatory 
burdens  for  operators  and  Member  States.  The  main  legal  issues  identified  behind  those 
challenges  are:  unclear  or  unsuitable  social  rules,  divergent  application  of  the  rules, 
inconsistent  and  ineffective  enforcement  and  poor  administrative  cooperation  between  the 
Member States. 

As  regards  the  draft  policy  measures,  there  was  strong  support  from  all  stakeholders  for 
strengthening  enforcement  and  cooperation  between  enforcement  bodies,  although  some 
national enforcement authorities raised concerns about potential additional enforcement costs. 
In particular, measures to harmonise national risk rating systems and grant real-time access to 
the data in risk rating systems were greatly supported by the national authorities and EU level 
enforcement organisations (with more than 70% support).   

The stakeholders were divided in their views on draft measures on posting conditions in road 
transport,  EU-13  Member  States  and  operators  supported  the  measure  with  reservations  (a 
time threshold should not be too low), whilst trade unions considered the measure detrimental 
to drivers. EU-15 Member States and operators had mixed views. The measure on reducing 
administrative burdens when applying the posting rules in road transport was favoured by a 
majority of all stakeholder groups, except trade unions. 

10 

Summary  of 
road_en 

findingshttp://ec.europa.eu/transport/modes/road/consultations/2016-social-legislation-

EN 

6 

   EN 

                                                 
Collection and use of expertise 

• 
External contractors assisted the Commission with a support study for the ex-post evaluation11 
and a separate support study for the impact assessment, which was completed in May 2017. 

• 

Impact assessment 

The  initiative  is  supported  by  an  impact  assessment,  which  has  received  a  positive  opinion 
with recommendations from the Regulatory Scrutiny Board. All the Board's main comments 
were  addressed  in  the  revised  version  of  the  impact  assessment  (see  Annex  1  for  an 
overview). 

Four policy options were considered.  The first three are cumulative in terms of increasing the 
level of regulatory intervention and expected impacts, whilst the fourth was horizontal and its 
measures could be combined with any of the first three options.  

The first policy option focused on clarifying the legal framework and increasing cooperation 
between  enforcement  authorities.  The  second  focused  on  strengthening  enforcement  and 
improving working patterns for workers. The third proposed substantive changes in the rules, 
in particular banning performance based pay. The fourth comprised sector specific criteria and 
specific  enforcement  measures  for  the  posting  of  workers  in  the  road  transport  sector.  It 
included variants based on time thresholds: variant (a) - 3 days, (b) - 5 days, (c) - 7 days  and 
(d)  –  9  days  as  a  total  per  calendar  month  spent  in  the  territory  of  a  host  Member  State, 
beyond which the host Member State's rules on minimum pay rates and annual paid holiday 
apply to a foreign operator. 

Policy option 1 appeared to be the least effective in addressing the issue of legal uncertainty 
and  inequality  between  drivers  and  operators,  mainly  due  to  the  voluntary  nature  of  the 
measures. This would add to concern about the number of national measures that drivers and 
operators have to cope with. 

Policy option 3 appears to have some negative side-effects in terms of working conditions for 
drivers in passenger transport, because the measure on delayed weekly rest would lead to an 
increase  of  20-33  %  in  the  fatigue  index  and  increase  risks  to  road  safety  by  4  -5  %.  This 
increased fatigue and risk would go together with a 3-5% reduction in compliance costs for 
operators.  

Policy option 2 provides the most positive impacts in terms of improved working conditions 
for drivers (reducing the fatigue index by 28% and periods away from home by 43% for EU-
13 drivers and by 16% for EU-15 drivers). In the same time it helps to reduce distortions of 
competition and improve road safety thanks to the measures making enforcement consistent 
and more efficient, while reducing somewhat administrative burdens for national authorities 
and transport undertakings.  

As  regards  the  horizontal  option  (PP4)  on  posting  of  workers,  the  compliance  costs  for 
operators  are  the lowest  in  the  case  of  a  higher  threshold, due  to  a  reduced  number  of  trips 
within the scope of the minimum wage rules. On the other hand a lower time threshold would 
cover a broader group of drivers involved in cross-border provision of road transport services, 
leading to higher overall positive effects in terms of improving social and working conditions 
of drivers and increasing job attractiveness. 

11 

reporthttps://ec.europa.eu/transport/sites/transport/files/facts-fundings/evaluations/doc/2016-ex-

Final 
post-eval-road-transport-social-legislation-final-report.pdf 

EN 

7 

   EN 

                                                 
The  estimated  significant  savings  to  operators  result  mainly  from  the  option  4,  and  in 
particular the measures on administrative and control requirements. These savings are in the 
range  of  €785  million  per  year  in  administrative  costs.  Savings  from  the  option  2  measures 
could not be quantified. However, they are expected to reduce infringements and hence non-
compliance  costs.  In  addition,  they  enable  transport  operations  to  be  more  efficient  and 
provide an incentive for more frequent returns to drivers' home. They will, however, trigger 
slightly  higher  enforcement  costs  for  national  authorities  (of  between  1,3%  and  8%),  in 
particular as regards checks on compliance with the working time rules.  

• 

Regulatory fitness and simplification 

The  proposal  pursues  the  REFIT  objective  of  increasing  the  effectiveness  of  legislation  and 
reducing regulatory burdens for businesses. It does so mainly by simplifying and adaptating 
the rules to the specific needs of the sector and making more effective use of more uniform 
enforcement  tools  and  databases.  While  enforcement  costs  for  national  authorities  are 
expected  to  increase  slightly,  the  increase  is  justified  by  the  improvement  in  the  working 
conditions  of  drivers  and  business  conditions  for  operators,  allowing  savings  in  non-
compliance  costs.  The  proposal  will  also  make  enforcement  more  efficient,  for  example  by 
increasing  the  use  of  risk  rating  systems  to  target  controls  at  non–compliant  operators.  The 
proposal  does  not  exempt  micro-enterprises,  because  that  would  lead  to  a  risk  of  unequal 
competitive conditions and unequal working conditions.  

Fundamental rights 

The  proposal  contributes  to  the  objectives  of  the  Charter  of  Fundamental  Rights  and  in 
particular Article 31, which provides for the right to fair and just working conditions. 

4. 

BUDGETARY IMPLICATIONS 

The proposal will have no implications for the Union budget. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The monitoring of developments, in particular the number, types and frequency of occurrence 
of  infringements  against  social  rules  will  be  done  through  a  combination  of  national 
implementation  reports  and  analysis  of  data  from  the  EU  enforcement  organisations. 
Implementation and enforcement issues will be regularly monitored and assessed by the the 
Committee on Road Transport. The information on posting will be collected from the national 
databases, based on the A1 form – a declaration that a posted worker remains covered by the 
social security system of the home country.  

Other  developments  in  the  market  and  their  potential  impacts  on  working  conditions  and 
conditions  of  competition  will  be  assessed  using  relevant  data  collected  as  part  of  other 
initiatives, in particular the revision of the Regulation on access to the international haulage 
market. 

• 

Explanatory documents  

This proposal modifies two existing directives to a limited extent and lays down specific rules 
in  relation  to  two  other  existing  directives.  No  specific  explanatory  documents  on  the 
transposition deems necessary.  

EN 

8 

   EN 

 
• 

Possible amendment to Directive 2002/15/EC 

In line with Article 154 TFEU, which embodies the social partner organisations at European 
level  to  be  consulted  on  issues  concerning  employment  and  social  affairs  set  out  in  Article 
153 of the Treaty, the Commision will launch a consultation process to seek the views of the 
social  partners  on  the  possible  direction  of  Union  action  regarding  Directive  2002/15/EC, 
which is part of the legal framework of social rules in road transport. 

• 

Detailed explanation of the specific provisions of the proposal 

The main elements of the proposal are: 

Directive 2006/22/EC 

Article 1 is amending is amending Directive 2006/22/EC as follows :  

Article 1 – Subject matter 

Article 1 is amended to clarify that enforcement requirements set out in this Directive apply 
also to controlling compliance with Directive 2002/15/EC. 

Article 2 – Checking systems  

Article 2(1) second paragraph is amended to require that checks carried out by Member States 
include  checking  compliance  with  the  working  time  provisions  set  out  in  Directive 
2002/15/EC.  

Article 2(3) specifies that the minimum number of checks on compliance with the provisions 
of Regulation (EC) No 561/2006 includes checks on compliance with Directive 2002/15/EC.  

Article 2(4) requires the information submitted by the Member States to the Commission on 
the  results  of  checks  at  the  roadside  and  at  premises  to  include  checks  on  compliance  with 
Directive 2002/15/EC. 

Article 6 – Checks at the premises of undertakings  

Article  6(1)  specifies  that  serious  infringements  giving  rise  to  checks  at    premises  of  road 
transport undertakings shall also include infringements of Directive 2002/15/EC. 

Article 7 – Intracommunity liaison 

Article 7(1)(d) is inserted to require designated national authorities to exchange information 
on the implementation of this Directive and of Directive 2002/15/EC.  

Article 8 – Exchange of information 

Article  8  is  amended  in  order  to  expand  administrative  cooperation  and  mutual  assistance 
between  Member  States.  Article  8(1)  is  amended  to  specify  that  exchange  of  information 
between  the  designated  national  authorities  also  covers  the  implementation  of  Directive 
2002/15/EC and Regulation (EC) No 561/2006. Article 8(1)a is inserted to set fixed deadlines 
within which a Member State authority must respond to requests for information from other 
Member States.  

Article 9 – Risk rating system 

Article  9  is  amended  to  improve  the  consistency  and  effectiveness  of  national  risk  rating 
systems. In Article 9(1), a second paragraph is added, requiring the Commission to establish a 
uniform formula for calculating the risk rating of transport undertakings; it also specifies the 
criteria  to  be  taken  into  account  when  establishing  such  a  formula,  including  the  use  of  the 

EN 

9 

   EN 

 
'smart' tachograph. Article 9(2) is amended to encourage Member States to discuss rules for 
carrying out additional checks at the premises of road transport undertakings with a high risk 
rating.  Article  9(4)  is  added  to  specify  that  data  in  the  risk  rating  system  must  be  made 
available  to  control  authorities.  Article  9(5)  is  added  to  require  Member  States  to  make  the 
information in the national risk rating system available to other Member States on request. 

Article 11- Best practice 

Article  11(3)  is  added  to  require  the  Commission  to  establish  a  common  approach  to 
recording and controlling periods of 'other work' than driving when a driver is away from a 
vehicle and hence could not make the necessary records in the tachograph.  

Annex 1 

Part  A  point  (6)  is  added  to  extend  the  scope  of  roadside  checks  to  cover  checks  on 
compliance with the weekly working time limits. Part B point (4) is added to extend the scope 
of  checks  at  premises  by  including  checks  on  weekly  working  time,  breaks  and  night  work 
provisions set out in Directive 2002/15/EC.  

Specific rules on posting in the road transport sector prevailing over certain provisions 
of Directive 96/71/EC and Directive 2014/67/EU 

Article 2, Paragraph 1  

Article  2,  paragraph  1  explains  the  objectives  of  the  rules  laying  down  specific  rule  son 
posting in the road transport sector prevailing over relevant provisions in Directives 96/71/EC 
and Directive 2014/67/EU. 

Article 2, paragraphs 2 and 3 

Article 2, paragraph 2 specifies the minimum period of posting below which the host Member 
States' rules on minimum rates of pay and on paid annual leave do not apply to international 
road  transport  operations.  This  time  threshold  does  not  apply  to  cabotage  since  the  entire 
transport operation is taking place in a host Member State. As a consequence the minimum 
rate of pay and the minimum annual paid holidays of the host Member State should apply to 
cabotage irrespective of the frequency and duration of the operations carried out by a driver.  
Paragraph 3 further explains the method of calculation of such periods of posting. 

Article 2, paragraph 4 

Article 3, paragraph 4 and 5 lays down the specific administrative requirements and control 
measures  for  checking  compliance  with  the  provisions  on  posting  of  workers  in  road 
transport.  

EN 

10 

   EN 

2017/0121 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Directive 2006/22/EC as regards enforcement requirements and laying down 
specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting 
drivers in the road transport sector  

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 91(1) thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee12,  
Having regard to the opinion of the Committee of the Regions13,  

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

In  order  to  create  a  safe,  efficient  and  socially  responsible  road  transport  sector  it  is 
necessary to ensure adequate working conditions and social protection for drivers, on 
the one hand, and suitable business and fair competition conditions for operators, on 
the other.  

The  inherent  high  mobility  of  road  transport  services  requires  particular  attention  in 
assuring  that  drivers  benefit  from  the  rights  to  which  they  are  entitled  and  that 
operators are not faced with disproportionate administrative barriers unduly restricting 
their freedom to provide cross-border services. 

The  balance  between  enhancing  social  and  working  conditions  for  drivers  and 
facilitating the exercise of the freedom to provide road transport services based on fair 
competition  between  national  and  foreign  operators  is  crucial  for  the  smooth 
functioning of the internal market. 

Having  evaluated  the  effectiveness  and  efficiency  of  the  current  Union  social 
legislation  in  road  transport,  certain  loopholes  in  the  existing  provisions  and 
deficiencies  in  their  enforcement  were  identified.  Furthermore  a  number  of 
discrepancies  exist  between  Member  States  in  interpretation,  application  and 
implementation  of  the  rules.  This  creates  legal  uncertainty  and  unequal  treatment  of 
drivers  and  operators,  which  is  detrimental  to  the  working,  social  and  competition 
conditions in the sector.  

(5) 

Adequate,  effective  and  consistent  enforcement  of  the  working  time  provisions  is 
crucial for protecting the working conditions of drivers and preventing the distortions 
of competition resulting from non-compliance. Therefore it is desirable to extend the 

12 
13 

OJ C , , p. . 
OJ C , , p. . 

EN 

11 

   EN 

                                                 
(6) 

(7) 

(8) 

(9) 

existing  uniform  enforcement  requirements  set  out  in  Directive  2006/22/EC  to 
controlling  compliance  with  the  working  time  provisions  set  out  in  Directive 
2002/15/EU.  

The  administrative  cooperation  between  Member  States  with  regard 
the 
implementation  of  the  social  rules  in  road  transport  has  proven  insufficient,  making 
cross-border  enforcement  more  difficult,  inefficient  and  inconsistent.  It  is  therefore 
necessary to establish a framework for effective communication and mutual assistance, 
including  exchange  of  data  on  infringements  and  information  on  good  practices  in 
enforcement.  

to 

In  order  to  further  improve  the  effectiveness,  efficiency  and  consistency  of 
enforcement, it is desirable to develop the features and the use of the existing national 
risk rating systems. Access to the data contained in risk rating systems would enable 
better  targeting  of  controls  at  non-compliant  operators  and  a  uniform  formula  for 
assessing risk rating of a transport undertaking should contribute to fairer treatment of 
operators at controls. 

In order to ensure uniform conditions for the implementation of Directive 2006/22/EC, 
implementing powers should be conferred on the Commission. Those powers should 
be exercised in accordance with Regulation (EU) No 182/201114. 

Difficulties  have  also  been  experienced  in  applying  the  rules  on  posting  of  workers 
specified in Directive 96/71/EC of the European Parliament and of the Council15 and 
the rules on the administrative requirements laid down in Directive 2014/67/EU of the 
European Parliament and of the Council16 to the highly mobile road transport sector. 
The  uncoordinated  national  measures  on  the  application  and  enforcement  of  the 
provisions  on  posting  of  workers  in  the    road  transport  sector  have  generated  high 
administrative  burdens  for    non-resident  Union    operators.  This  created  undue 
restrictions  to  the  freedom  to  provide  cross-border  road  transport  services  having 
negative side-effects on jobs. 

(10)  The  Commission,  in  its  proposal  of  8  March  201617  for  the  revision  of  Directive 
96/71/EC, recognized that the implementation of that Directive raises particular legal 
questions and difficulties in the highly mobile road transport sector and indicated that 
those  issues  should  be  best  addressed  through  sector-specific  road  transport 
legislation. 

(11) 

In  order  to  ensure  the    effective  and  proportionate  implementation  of  Directive 
96/71/EC in the road transport sector, it is necessary to establish sector-specific rules 
reflecting the particularity  of the highly mobile workforce in the road transport sector 
and  providing  a  balance  between  the  social  protection  of  drivers  and  the  freedom  to 
provide cross-border services for operators.  

14 

15 

16 

17 

Regulation  (EU)  No  182/2011  of  the  European  Parliament  and  of  the  Council  of  16  February  2011 
laying down the rules and general principles concerning mechanisms for control by the Member States 
of the Commission's exercise of implementing powers (OJ L 55, 28.2.2011, p. 13). 
Directive 96/71/EC  of  the European Parliament  and of  the  Council  of 16  December  1996  concerning 
the posting of workers in the framework of the provision of services (OJ L 18, 21.1.97, p.1) 
Directive  2014/67/EU  of  the  European  Parliament  and  of  the  Council  of  15  May  2014  on  the 
enforcement  of  Directive  96/71/EC  concerning  the  posting  of  workers  in  the  framework  of  the 
provision  of  services  and  amending  Regulation  (EU)  No  1024/2012  on  administrative  cooperation 
through the Internal Market Information System (‘the IMI Regulation’) (OJ L 159, 28.5.2014, p. 11). 
COM(2016)128 

EN 

12 

   EN 

                                                 
(12)  Such  balanced  criteria  should  be  based  on  a  concept  of  a  sufficient  link  of  a  driver 
with  a  territory  of  a  host  Member  State.  Therefore,  a  time  threshold  should  be 
established,  beyond  which  the  minimum  rate  of  pay  and  the  minimum  annual  paid 
holidays  of  the  host  Member  State  shall  apply  in  case  of  international  transport 
operations.  This time threshold should not apply to cabotage operations as defined by 
Regulations 1072/200918 and 1073/200919 since the entire transport operation is taking 
place  in  a  host  Member  State.  As  a  consequence  the  minimum  rate  of  pay  and  the 
minimum  annual  paid  holidays  of  the  host  Member  State  should  apply  to  cabotage 
irrespective of the frequency and duration of the operations carried out by a driver. 

(13) 

In  order  to  ensure  effective  and  efficient  enforcement  of  the  sector-specific  rules  on 
posting  of  workers  and  to  avoid  disproportionate  administrative  burdens  for  non-
resident  operators sector, specific administrative and control requirements should be 
established in the road transport sector, taking full advantage of control tools such as 
the digital tachograph. 

(14)  Directive 2006/22/EC should therefore be amended accordingly, 

HAVE ADOPTED THIS DIRECTIVE: 

Directive 2006/22/EC is amended as follows: 

(1) 

the title is replaced by the following: 

Article 1 

"Directive 2006/22/EC of the European Parliament and of the Council of 15 March 2006 on 
minimum conditions for the implementation of Regulations (EC) No 561/2006 and (EU) No 
165/2014 and Directive 2002/15/EC of the European Parliament and of the Council as regards 
social  legislation  relating  to  road  transport  activities,  and  repealing  Council  Directive 
88/599/EEC"; 

(2) 

Article 1 is replaced by the following: 

" This Directive lays down minimum conditions for the implementation of Regulations (EC) 
No 561/2006 and (EU) No 165/2014*  and Directive 2002/15/EC**." 

______________________ 

*Regulation (EU) No 165/2014 of the European Parliament and of the Council of 4 February 
2014  on  tachographs  in  road  transport,  repealing  Council  Regulation  (EEC)  No 3821/85  on 
recording  equipment  in  road  transport  and  amending  Regulation  (EC)  No 561/2006  of  the 
European  Parliament  and  of  the  Council  on  the  harmonisation  of  certain  social  legislation 
relating to road transport (OJ L 60, 28.2.2014, p. 1). 

**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  activities 
(OJ L 80, 23.3.2002, p. 35)."; 

(3) 

Article 2 is amended as follows: 

Regulation (EC) No 1072/2009 of the European Parliament and of the Council of 21 October 2009 on 

18 
common rules for access to the international road haulage market (OJ L 300, 14.11.2009, p. 72). 
19 
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) 
No 561/2006 (OJ L 300, 14.11.2009, p.88) 

EN 

13 

   EN 

 
                                                 
(a) 

in paragraph 1, the second subparagraph is replaced by the following: 

"These  checks  shall  cover  each  year  a  large  and  representative  cross-section  of  mobile 
workers, drivers, undertakings and vehicles falling within the scope of Regulations (EC) No 
561/2006 and (EU) No 165/2014 and of mobile workers and drivers falling withing the scope 
of Directive 2002/15/EC."; 

(b) 

in paragraph 3, the first subparagraph is replaced by the following: 

"Each Member State shall organise checks in such a  way that at least 3% of days worked by 
drivers  of  vehicles  falling  within  the  scope  of  Regulation  (EC)  No  561/2006,  Regulation  
(EU)165/2014 and Directive 2002/15/EC are checked." 

(c)  paragraph 4 is replaced by the following: 

The  information  submitted  to  the  Commission  in  accordance  with  Article  17  of 
"4. 
Regulation (EC) No 561/2006 shall include the number of drivers checked at the roadside, the 
number of checks at the premises of undertakings, the number of working days checked and 
the number and type of infringements reported, together with a record of whether passengers 
or goods were transported." 

(4) 

in Article 6, paragraph 1 is replaced by the following: 

Checks at premises shall be planned in the light of past experience in relation to the 
"1. 
various  types  of  transport  and  undertakings.  They  shall  also  be  carried  out  if  serious 
infringements  of  Regulation  (EC)  No  561/2006  or  (EU)  No  165/2014  or  Directive 
2002/15/EC have been detected at the roadside."; 

(5) 

in Article 7(1), the following point (d) is added: 

to  ensure  exchange  of  information  with  the  other  Member  States  with  regard  to  the 

"(d) 
application of national provisions transposing this Directive and Directive 2002/15/EC." 

(6) 

Article 8 is amended as follows: 

(a) 

in paragraph 1, point (b) is replaced by the following: 

"(b) upon reasoned request by a Member State in individual cases." 

(b) 

the following paragraph 1a is inserted: 

"1a.  Member State shall submit the information requested by other Member States pursuant 
to  paragraph  1(b)  of  this  Article  within  25  working  days  from  the  receipt  of  the  request  in 
cases  requiring  in-depth  examination  or  involving  checks  at  premises  of  the  undertakings 
concerned.  A  shorter  time  limit  may  be  mutually  agreed  between  the  Member  States.  In 
urgent  cases  or  cases  requiring  simple  consultation  of  registers,  such  as  of  a  risk  rating 
system, the requested information shall be submitted within three working days. 

Where  the  requested  Member  State  considers  that  the  request  is  insufficiently  reasoned,  it 
shall inform the requesting Member State accordingly within 10 working days. The requesting 
Member  State  shall  further  substantiate  the  request.  Where  this  is  not  possible,  the  request 
may be rejected by the Member State. 

Where  it  is  difficult  or  impossible  to  comply  with  a  request  for  information  or  to  carry  out 
checks,  inspections  or  investigations,  the  Member  State  in  question  shall  inform  the 
requesting Member State accordingly within 10 working days, giving reasons. The Member 
States  concerned  shall  discuss  with  each  other  with  a  view  to  finding  a  solution  for  any 
difficulty raised.". 

(7) 

Article 9 is amended as follows: 

EN 

14 

   EN 

(a)  paragraph 1 is replaced by the following: 

"1.  Member  States  shall  introduce  a  risk  rating  system  for  undertakings  based  on  the 
relative  number  and  severity  of  any  infringement  of  Regulation  (EC)  No  561/2006  or  of 
Regulation  (EU)  No  165/2014  or  of  national  provisions  transposing  Directive  2002/15/EC 
that an individual undertaking has committed. 

The  Commission  shall,  by  means  of  implementing  acts,  establish  a  common  formula  for 
calculating a  risk rating of undertakings,  which shall take into  account  the number, severity 
and  frequency  of  occurrence  of  infringements  as  well  as  the  results  of  controls  where  no 
infringement has been detected and whether a road transport undertaking has been using the 
smart tachograph, pursuant to Chapter II of Regulation (EU) No 165/2014, on all its vehicles. 
Those  implementing  acts  shall  be  adopted  in  accordance  with  the  examination  procedure 
referred to in Article 12(2) of this Directive." 

(b) 

(c) 

in paragraph 2, the second sentence is deleted. 

the following paragraphs 4 and 5 are added: 

"4. 
In order to facilitate targeted roadside checks, the data contained in the national risk 
rating system shall be accessible at the time of control to all the competent control authorities 
of the Member State concerned.; 

5.   Member States shall make the information contained in the national risk rating system 
available  upon  request  or  directly  accessible  to  all  competent  authorities  of  other  Member 
States in accordance with the time limits set out in Article 8."; 

(8) 

in Article 11, paragraph 3 is replaced by the following: 

"3. 
The  Commission  shall  establish  a  common  approach  to  recording  and  controlling 
periods of other work, as defined in point (e) of Article 4 of Regulation (EC) No 561/2006, 
and  periods  of  at  least  one  week  during  which  a  driver  is  away  from  the  vehicle,  by 
implementing  acts.  Those  implementing  acts  shall  be  adopted  in  accordance  with  the 
examination procedure referred to in Article 12(2)"; 

(9) 

Annex I is amended as follows: 

(a) 

in Part A, the following point (6) is added: 

"(6)  weekly working times as set out in Articles 4 and 5 of Directive 2002/15/EC."; 

(b) 

in Part B, the following point (4) is added: 

"(4)  weekly working times, breaks and night work requirements set out in Articles 4, 5 and 
7 of Directive 2002/15/EC.". 

Article 2 

1. 

2. 

This  Article  establishes  specific  rules  as  regards  certain  aspects  of  Directive 
96/71/EC  relating  to  the  posting  of  drivers  in  the  road  transport  sector  and    of 
Directive  2014/67/EU  of  the  European  Parliament  and  of  the  Council  relating  to 
administrative requirements and control measures for the posting of those drivers. 

Member States shall not apply points (b) and (c) of the first subparagraph of Article 3 
(1)    of  Directive  96/71/EC  to  drivers  in  the  road  transport  sector  employed  by 
undertakings  referred  to  in  Article  1(3)(a)  of  that  Directive,  when  performing 
international  carriage  operations  as  defined  by  Regulations  1072/2009  and 
1073/2009 where the period of posting to their territory to perform these operations 
is shorter than or equal to 3 days during a period of one calendar month.  

EN 

15 

   EN 

When the period of posting is longer than 3 days, Member States shall apply points (b) and (c) 
of  the  first  subparagraph  of  Article  3  (1)    of  Directive  96/71/EC  for  the  entire  period  of 
posting  to  their  territory  during  the  period  of  one  calendar  month  referred  to    in  the  first 
subparagraph.  

3. For the purposes of the calculation of the periods of posting  referred to in paragraph 2: 

(a) 

(b) 

(c) 

4. 

a daily working period shorter than six hours spent in the territory of a host Member 
State shall be considered as half a day; 

a daily working period of six hours or more  spent in the territory of a host Member 
State shall be considered as a full day; 

breaks  and  rest  periods  as  well  as  periods  of  availability  spent  in  the  territory  of  a 
host Member State shall be considered as working period. 

Member  States  may  only  impose  the  following  administrative  requirements  and 
control measures: 

(a) 
an obligation for the road transport operator established in another Member State to 
send  a  posting  declaration  to  the  national  competent  authorities  at  the  latest  at  the 
commencement of the posting, in electronic form, in an official language of the host Member 
State or in English, containing only  the following information: 

(i) 

(ii)  

(iii) 

(iv) 

(v) 

(vi) 

the identity of the road transport operator; 

the  contact  details  of  a  transport  manager  or  other  contact  person(s)  in  the 
Member  State of establishment to liaise with the competent authorities of the 
host  Member  State,  in  which  the  services  are  provided  and  to  send  out  and 
receive documents or notices; 

the anticipated number  and the identities of posted drivers; 

the anticipated duration, envisaged beginning and end date of the posting; 

the number plates of vehicles used in posting; 

the  type  of  transport  services,  that  is  to  say    carriage  of  goods,  carriage  of 
passengers, international carriage, cabotage operation; 

(b) 
an  obligation  for  the  driver  to  keep  and  make  available,  where  requested  at  the 
roadside control, in paper or electronic form, a copy of the posting declaration and evidence 
of  transport  operation  taking  place  in  the  host  Member  State,  such  as  an  electronic 
consignment  note  (e-CMR)  or  evidence  referred  to  in  Article  8  of  Regulation  (EC)  No 
1072/2009 of the European Parliament and of the Council.  

(c) 
an  obligation  for  the  driver  to  keep  and  make  available,  where    requested  at  the 
roadside control, the tachograph records, and in particular the country codes of Member States 
where the driver has been present when carrying out international road transport operations or 
cabotage operations;  

(d) 
an  obligation  for  the  driver  to  keep  and  make  available,  where    requested  at  the 
roadside  control,  in  paper  or  electronic  form,  a  copy  of  the  employment  contract  or  an 
equivalent  document  within  the  meaning  of  Article  3  of  Council  Directive  91/533/EEC20, 
translated into one of the official languages of the host Member State or into English; 

20 
the conditions applicable to the contract or employment relationship (OJ L 288, 18.10.1991, p. 32) 

Council Directive 91/533/EEC of 14 October 1991 on an employer's obligation to inform employees of 

EN 

16 

   EN 

                                                 
(e) 
an  obligation  for  the  driver  to  make  available,  where    requested  at  the  roadside 
control,  in  paper  or  electronic  form,  a  copy  of  payslips  for  last  two  months;  during  the 
roadside check, the driver shall be allowed to contact the head office, the transport manager or 
any other person or entity which may provide this copy; 

(f) 
an obligation for the road transport operator to deliver, after the period of posting, in 
paper  or  electronic  form,  copies  of  documents  referred  to  in    points  (b),  (c)  and  (e),  at  the 
request of the authorities of the host Member State within a reasonable period of time;  

5. 

For the purposes of point (a) of paragraph 4 the road transport operator may provide 
a posting declaration covering a period of a maximum of six months.  

Article 3 

1. 
The Commission shall evaluate the implementation of this Directive, in particular the 
impact of Article 2, by [3 years after the date for transposition of this Directive] and report to 
the European Parliament and the Council on the application of this Directive. The report by 
the Commission shall, if appropriate, be accompanied by a legislative proposal.  

2. 
Following  the  report  referred  to  in  paragraph  1,  the  Commission  shall  regularly 
evaluate this Directive and submit the evaluation results to the European Parliament and the 
Council.  

Where appropriate, the reports referred to in paragraphs 1 and 2 shall be accompanied 

3. 
by relevant proposals. 

Article 4  

1.  

Member States shall adopt and publish, by […] [The time limit for transposition will 
be  as  short  as  possible  and,  generally,  will  not  exceed  two  years]  at  the  latest,  the 
laws,  regulations  and  administrative  provisions  necessary  to  comply  with  this 
Directive.  They  shall  forthwith  communicate  to  the  Commission  the  text  of  those 
provisions. 

They shall apply those provisions from […]. 

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  day following that of its publication in the Official 
Journal of the European Union. 

Article 5 

EN 

17 

   EN 

 
This Directive is addressed to the Member States. 

Done at Brussels, 

Article 6 

For the European Parliament 
The President 

For the Council 
The President 

EN 

18 

   EN