Proposal for a COUNCIL DECISION on the position to be adopted on behalf of the European Union in the Group of Experts of the European Agreement concerning the work of crews of vehicles engaged in international road transport (AETR), in the Working Party on Road Transport of the United Nations Economic Commission for Europe and, as appropriate, in relation to the notification by the UN Secretary-General pursuant to Article 21(1) of the AETR.
Date: 2023-03-20
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: AETR agreement, UN regional commission, drivers, driving period, international road transport, rest period, revision of an agreement, road safety, technical specification, traffic regulations

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   EUROPEAN COMMISSION  Brussels, 20.3.2023  COM(2023) 144 final 2023/0075 (NLE)  Proposal for a COUNCIL DECISION on the position to be adopted on behalf of the European Union in the Group of Experts of the European Agreement concerning the work of crews of vehicles engaged in international road transport (AETR), in the Working Party on Road Transport of the United Nations Economic Commission for Europe and, as appropriate, in relation to the notification by the UN Secretary-General pursuant to Article 21(1) of the AETR.  
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This proposal concerns the decision establishing the position to be taken on the Union's behalf 
in the Group of Experts on the European Agreement concerning the work of crews of vehicles 
engaged in international road transport (AETR) of the United Nations Economic Commission 
for  Europe  (UNECE)  and  in  the  UNECE  Working  Party  on  Road  Transport  (SC.1),  in 
connection with the envisaged adoption of an amendment to the AETR Agreement as regards 
the introduction of a ‘force majeure’ clause. 

2. 

2.1. 

CONTEXT OF THE PROPOSAL 

The  European  Agreement  concerning  the  work  of  crews  engaged 
international road transport (AETR) 

in 

The AETR aims to harmonise the legislative framework of Contracting Parties to the AETR 
as  regards  driving  and  rest  times  for  professional  drivers  and  the  corresponding  technical 
requirements for the construction and installation of the recording equipment used in vehicles 
(the tachograph). The AETR entered into force on 5 January 1976.  It has subsequently been 
amended, most recently on 20 September 2010. 
All Member States are parties to the AETR1. 

2.2. 

The Group of Experts on the AETR and the Working Party on Road Transport  

The  Group  of  Experts  on  the  AETR  is  a  technical  group  set  up  by  the  Inland  Transport 
Committee  of  the  UNECE  whose  objective  is  to  develop  proposals  to  amend  the  AETR. 
According to the Decision establishing the Group of experts on AETR,  the European Union 
can participate in the Expert Group2.  

The  Working  Party  on  Road  Transport  (SC.1)  is  a  group  set  up  by  the  Inland  Transport 
Committee  to  promote  the  development  and  facilitation  of  international  transport  by  road. 
This  includes  harmonising  and  simplifying  the  rules  and  requirements  related  to  road 
transport.  

Proposals  to  amend  the  AETR  are  generally  first  discussed  by  the  members  of  the  Expert 
Group  and  then,  submitted  to  the  UNECE  Working  Party  on  Road  Transport  (SC.1)  for 
endorsement.  If  consensus  is  reached  in  both  groups,  a  Contracting  Party  of  the  AETR 
formally tables the amendment to the United Nations Secretary-General, in accordance with 
Article 21 of the AETR. The bodies set up in UNECE (the Expert  Group on AETR and the 
Working Party on Road Transport) provide a forum for discussion and endorsement, so as to 

1  Austria (ratified on 11/6/1975), Belgium (ratified on 30/12/1977), Bulgaria (ratified on 12/5/1995), Croatia 
(ratified on 3/8/1992), Cyprus (ratified on 5/9/2003), Czechia (ratified on 22/6/1993), Denmark (ratified on 
30/12/1977),  Estonia  (ratified  on  3/5/1993),  Finland  (ratified  on  16/2/1999),  France  (ratified  on  9/1/1978), 
Germany  (ratified  on  9/7/1975),  Greece  (ratified  on  11/1/1974),  Hungary  (ratified  on  22/10/1999),  Ireland 
(ratified on 28/8/1979), Italy  (ratified on 28/12/1978), Latvia (ratified on 14/1/1994), Lithuania (ratified on 
3/6/1998),  Luxembourg  (ratified  on  30/12/1977),  Malta  (ratified  on  24/9/2004),  Netherlands  (ratified  on 
30/12/1977),  Poland  (ratified  on  14/7/1992),  Portugal  (ratified  on  20/9/1973),  Romania  (ratified  on 
8/12/1994), Slovakia (ratified on 28/5/1993), Slovenia (ratified on 6/8/1993), Spain (ratified on 3/1/1993) and 
Sweden (ratified on 24/8/1973). 

2 

Decision on  matters relating  to Inland Transport Committee: Establishment of a Group  of Experts on 
European Agreement Concerning Work of Crews of Vehicles Engaged in International Road Transport 
(AETR),  ECE/EX/2011/L.16,  paragraph  3:    “In  accordance  with  the  Guidelines,  participation  in  the 
Expert Group would be open to all ECE member States, all AETR Contracting Parties and the European 
Union (…)” 

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prepare  the  formal  submission  of  an  amendment  according  to  the  AETR,  and  to  avoid 
objections once an amendment is formally tabled to the United Nations Secretary-General. It 
is  therefore  relevant  to  establish  Union  positions  in  these  groups  as  well,  so  that  non-EU 
Contracting  Parties  submitting  proposals  to  the  relevant  UNECE  bodies  are  aware  of  the 
position of the Union as early as possible.  

However, pursuant to Article 21(1) AETR, Contracting Parties can also directly communicate 
the text of a proposed amendment to the UN Secretary-General, which then communicates it 
to all Contracting Parties. Once the formal submission to amend the AETR has been notified, 
Contracting Parties then have 6 months to object to the proposal. The proposal is deemed to 
be adopted if no Contracting Party objects to the amendment within that deadline. 

2.3. 

The envisaged act to be considered by the Group of Experts on the AETR and 
the Working Party on Road Transport 

On 20 February 2023, during its 31st session, the Group of Experts on the AETR is to decide 
on  whether  to  submit  a  proposal  by  the  Government  of  Belarus  to  amend  Article 4  of  the 
AETR  regarding  the  introduction  of  a  ‘force  majeure’  clause  (‘the  envisaged  act’)3  to  the 
Working  Party  on  Road  Transport  (SC.1).  This  envisaged  act  is  set  out  in  both 
ECE/TRANS/SC.1/GE.21/2023/24 
and 
ECE/TRANS/SC.1/GE.21.2023.15 submitted by the Russian Federation. 

submitted 

Belarus 

by 

The  purpose  of  the  envisaged  act  is  to  allow,  for  a  period  of  up  to  2  years,  drivers  of  a 
Contracting Party engaged in international transport to use record sheets completed by hand, 
instead of  a digital  tachograph  card, in the  event  of  ‘force majeure’ circumstances faced by 
that Contracting Party.  

The  envisaged  act,  if  adopted,  would  become  binding  on  the  parties  in  accordance  with 
paragraph 6 of Article 21 of the AETR, which provides that ‘Any amendment deemed to be 
accepted  shall  enter  into  force  three  months  after  the  date  on  which  it  was  deemed  to  be 
accepted.’ 

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

Since the start of the illegal war of aggression by the Russian Federation against Ukraine on 
24 February 2022, in which the Republic of Belarus has a complicit role, the European Union 
has adopted sanctions against both Russia and Belarus.  

These  sanctions  have  resulted,  among  other  consequences,  in  certain  EU  companies 
suspending  their  operations  in  and  with  Belarus  and  Russia.  These  include  companies  that 
usually supply digital tachograph cards and chips to the card issuing authorities of these two 
countries. As a result, Belarus and Russia are effectively in a situation where they claim not to 
be  able  to  deliver  tachograph  cards  to  their  drivers,  who  can  therefore  not  comply  with  the 
AETR when engaged in international road transport operations falling within its scope.  

As  a  result,  both  governments  have  proposed  to  introduce  a  ‘force  majeure’  clause  in  the 
AETR, which would allow drivers who should have a digital tachograph card issued by these 
countries to be exempted from the use of such, and to use alternative recording methods such 

3 
4 
5 

Agenda point 4, ECE/TRANS/SC.1/GE.21/69: ECE/TRANS/SC.1/GE.21/69 (unece.org). 
ECE/TRANS/SC.1/GE.21/2023/2: Прочие вопросы - (Belarus) | UNECE. 
The same amendment proposal is included by Russia in ECE/TRANS/SC.1/GE.21/2023/1: Добавление 
1С - (Russian Federation) | UNECE, even though this document largely deals with comments to another 
Union proposal (new Appendix 1C to the AETR). 

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as  record  sheets.  Such  an  alternative  would  enable  these  countries  to  legally  continue  their 
international transport operations by getting around a situation that is likely the result of the 
illegal  war  of  aggression  by  Russia  against  Ukraine,  in  which  Belarus  has  a  complicit  role, 
which led to the application of EU sanctions against Russia and Belarus. The Union’s position 
should therefore be against the adoption of such a proposal for amendment, as it would run 
counter to the objectives pursued by the EU sanctions regime.  

The proposed position is also in line with EU policy not to accept any Russian or Belarussian 
amendments  to  international  agreements,  given  Russia’s  illegal  war  of  aggression  against 
Ukraine.  

Furthermore, on substance, and independently of the geopolitical context in which it has been 
tabled,  the  proposed  amendment  would  also  significantly  weaken  the  AETR.  Indeed,  under 
the  proposal  for  amendment,  any  Contracting  Party  would,  through  a  simple  notification  to 
the UNECE Working Party on Road Transport – which would itself simply be informed and 
not  allowed  to  assess  any  justification  for  the  ‘force  majeure’  invoked  by  that  Contracting 
Party  –  be  allowed  to  bypass  one  of  the  primary  purposes  of  the  Agreement,  namely  the 
installation  and  use  of  harmonised  recording  equipment  (the  digital  tachograph  and  digital 
tachograph card) for international transport operations. For up to 2 years, drivers who would 
be expected to have a driver card issued by that Contracting Party would not be obliged to use 
a digital tachograph card in international transport. 

As a result, the enforcement of the drivers’ compliance with driving and rest times as laid out 
elsewhere in the AETR would be made drastically more difficult, especially since this would 
take place on the territory of another Contracting Party to the AETR than that of the driver. In 
practice, this amendment would therefore create a loophole that would likely compromise the 
entire purpose of the Agreement.  

A Union position is required as the amendment tabled by the Republic of Belarus, if accepted, 
will  be  binding  on  all  AETR  Contracting  Parties,  which  includes  all  Member  States.  In  its 
judgment of 31 March 1971 in Case 22/70 AETR6, the Court of Justice of the European Union 
recognised  that  the  area  of  the  work  of  crews  of  vehicles  engaged  in  road  transport  is  an 
exclusive  external  competence  of  the  Union.  This  competence  has  since  been  exercised  in 
numerous  legislative  acts  adopted  by  the  Union  co-legislators,  including  Regulation  (EC) 
No 561/2006  of  the  European  Parliament  and  of  the  Council7  and  Regulation  (EU) 
No 165/2014  of  the  European  Parliament  and  of  the  Council8.  The  envisaged  act  has  direct 
implications  on  EU  law,  including  Regulations  (EC)  No 561/2006  and  (EU)  No 165/2014. 
Since the subject matter of the AETR falls within the scope of Regulation (EC) No 561/2006, 
the power to negotiate and conclude the Agreement and its modifications lies exclusively with 
the Union pursuant to article 3(2) TFEU.  

6 
7 

8 

ECLI:EU:C:1971:32. 
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) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 (OJ L 
102, 11.4.2006, p. 1).  
Regulation (EU) No 165/2014 of the  European Parliament and of the  Council of 4 February 2014 on 
tachographs 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.).  

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4. 

LEGAL BASIS 

4.1. 

Procedural legal basis 

4.1.1.  Principles 

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for 
decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by 
an  agreement,  when  that  body  is  called  upon  to  adopt  acts  having  legal  effects,  with  the 
exception of acts supplementing or amending the institutional framework of the agreement.’ 

Article 218(9) TFEU applies  regardless  of whether the Union is  a member of the body or a 
party to the agreement9. 

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 
not  have  a  binding  effect  under  international  law,  but  that  are  ‘capable  of  decisively 
influencing the content of the legislation adopted by the EU legislature’10. 

4.1.2.  Application to the present case 

The  Group  of  Experts  on  the  AETR  and  the  Working  Party  on  Road  Transport  (SC.1)  are 
bodies set up by the Inland Transport Committee of the UNECE. 

The proposed amendment constitutes an act having legal effects. The envisaged amendment, 
if  then  adopted,  would  be  binding  under  international  law  in  accordance  with  21(6)  of  the 
AETR  and  capable  of  decisively  influencing  the  content  of  EU  legislation,  namely 
Regulations (EC) No 561/2006 and (EU) No 165/2014 which cover the AETR subject matter 
and explicitly refer to that agreement.  

The envisaged act does not supplement or amend the institutional framework of the AETR. 

Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU. 

4.2. 

Substantive legal basis 

4.2.1.  Principles 

The  substantive  legal  basis  for  a  decision  under  Article 218(9)  TFEU  depends  primarily  on 
the objective and content of the envisaged act in respect of which a position is taken on the 
Union’s behalf. If the envisaged act pursues two aims or has two components and if one of 
those  aims  or  components  is  identifiable  as  the  main  one,  whereas  the  other  is  merely 
incidental, the decision under Article 218(9) TFEU must be founded on a single substantive 
legal basis, namely that required by the main or predominant aim or component. 

4.2.2.  Application to the present case 

The main objective and content of the envisaged act relate to transport policy. 

Therefore, the substantive legal basis of the proposed decision is Article 91 TFEU. 

4.3. 

Conclusion 

The  legal  basis  of  the  proposed  decision  should  be  Article 91  TFEU,  in  conjunction  with 
Article 218(9) TFEU. 

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Judgment  of 
ECLI:EU:C:2014:2258, paragraph 64.  
Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61 to 64.  

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

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2023/0075 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be adopted on behalf of the European Union in the Group of Experts 
of the European Agreement concerning the work of crews of vehicles engaged in 
international road transport (AETR), in the Working Party on Road Transport of the 
United Nations Economic Commission for Europe and, as appropriate, in relation to the 
notification by the UN Secretary-General pursuant to Article 21(1) of the AETR. 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 91, in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

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12 

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The  European  Agreement  concerning  the  work  of  crews  of  vehicles  engaged  in 
international road transport (AETR)11 entered into force on 5 January 1976. 

A  Group  of  Experts  has  been  established  by  the  United  Nations  Economic 
Commission  for  Europe  in  the  framework  of  the  AETR.  It  is  a  body  empowered  to 
develop and submit proposals for amending the AETR to the Working Party on Road 
Transport.  

The  Group  of  Experts  on  AETR,  during  its  31st  session  on  20  February  2023,  is  to 
discuss  a  proposal  by  the  Governments  of  Belarus  and  the  Russian  Federation  to 
amend Article 4 of the Agreement by introducing a ‘force majeure’ clause, laid out in 
ECE/TRANS/SC.1/GE.21/2023/2 and in ECE/TRANS/SC.1/GE.21/2023/112.  

It is appropriate to establish the position to be taken on the Union's behalf in the Group 
of Experts on the AETR, and possibly in the Working Party on Road Transport, as the 
amendment to the Agreement which they are called to consider and endorse would be 
binding under international law in accordance with Article 21(6) of the AETR and is 
capable  of  decisively  influencing  the  content  of  EU  legislation,  namely  Regulations 
(EC) No 561/2006 and (EU) No 165/2014.  

In  its  judgment  of  31 March  1971  in  Case  22/70  AETR,  the  Court  of  Justice  of  the 
European Union recognised that the area of the work of crews of vehicles engaged in 
road transport is an exclusive external competence of the Union. This competence has 
been  exercised  since  then  in  numerous  legislative  acts  adopted  by  the  Union  co-
legislators, including Regulation (EC) No 561/2006 of the European Parliament and of 
the  Council13  and  Regulation  (EU)  No 165/2014  of  the  European  Parliament  and  of 

OJ L 95, 8.4.1978, p. 1. 
The same amendment proposal is included by Russia in ECE/TRANS/SC.1/GE.21/2023/1 even though 
this  document  largely  deals  with  comments  to  another  Union  proposal  (new  Appendix  1C  to  the 
AETR). 
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 

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(6) 

(7) 

(8) 

(9) 

the  Council14.  Since  the  subject  matter  of  the  AETR  falls  within  the  scope  of 
Regulation (EC) No 561/2006, the power to negotiate and conclude the AETR and its 
modifications lies exclusively with the Union pursuant to article 3(2) TFEU.  

The proposed amendment aims at solving a practical problem that is likely the result 
of  the  illegal  war  of  aggression  by  Russia  against  Ukraine,  in  which  Belarus  has  a 
complicit  role,  which  led  to  the  application  of  EU  sanctions  against  Russia  and 
Belarus.  It  would  allow  a  Contracting  Party  to  unilaterally  notify  that  it  could  no 
longer fulfil one of the main purposes of the AETR, namely the use of a harmonised 
recording  equipment  for  vehicles  engaged  in  international  transport  (the  digital 
tachograph), for reasons of ‘force majeure’ which would not be subject to any type of 
validation or assessment.  

The envisaged act would allow, following such a declaration by a Contracting Party to 
the AETR,  not  to  require the use of digital  tachographs and digital  tachograph cards 
for  vehicles  registered  in  that  Contracting  Party  when  engaged  in  international  road 
transport operations. It would thus render the enforcement of the drivers’ compliance 
with  driving  and  rest  times  as  laid  out  elsewhere  in  the  AETR  drastically  more 
difficult,  creating  a  loophole  that  would  likely  compromise  the  entire  purpose  of  the 
Agreement.  

The  Union’s  position  to  be  taken  in  the  Group  of  Experts  on  the  AETR  and  in  the 
Working Party on Road Transport, should be not to support the proposed amendment, 
in order to prevent a significant weakening of the enforcement of the rules on driving 
and rest times laid down in the AETR, and ensure the full effect of the EU sanctions 
regime. 

It cannot be excluded that the Russian Federation or the Republic of Belarus formally 
submits  the  proposal  to  amend  the  AETR  under  Article  21(1)  of  the  AETR, 
disregarding the discussions in UNECE’s bodies. In this case, Member States should 
object to the proposal under the procedure laid down in paragraph (b) of Article 21(2) 
of the AETR.  

(10)  The  Union's  position  is  to  be  expressed  by  the  Member  States  of  the  Union  that  are 
members  of  the  Group  of  Experts  of  the  AETR  and  of  the  Working  Party  on  Road 
Transport, acting jointly in the interest of the Union, 

HAS ADOPTED THIS DECISION: 

Article 1 
The Union position  at  the 31st  session of the Group of Experts  on the European Agreement 
concerning the work of crews of vehicles engaged in international road transport (AETR) and,  
as relevant, at the next session of the Working Party on Road Transport of the United Nations 
Economic Commission  for Europe (UNECE), or  at  any subsequent  sessions,  shall be  not  to 
support the proposed amendment to the AETR as set out in ECE/TRANS/SC.1/GE.21/2023/2 
and  ECE/TRANS/SC.1/GE.21/2023/1  to  include  a  ‘force  majeure’  clause,  as  well  as  not  to 

14 

(EEC)  No 3821/85  and (EC) No 2135/98  and  repealing  Council  Regulation  (EEC)  No 3820/85  (OJ  L 
102, 11.4.2006, p. 1).  
Regulation  (EU)  No 165/2014  of  the  European Parliament  and  of  the  Council  of  4  February  2014  on 
tachographs 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).  

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support any similar amendment in substance to be tabled either by the Russian Federation or 
the Republic of Belarus.  

The  position  referred  to  in  Article  1  shall  be  expressed  by  the  Member  States  of  the  Union 
that are members of the Group of Experts on the AETR and of the Working  Party on Road 
Transport of the UNECE, acting jointly in the interest of the Union. 

Article 2 

Article 3 

Should  Member  States  receive  a  notification  under  Article  21(1)  of  the  AETR  that  the 
Russian  Federation  or  the  Republic  of  Belarus,  disregarding  the  discussions  in  UNECE’s 
bodies,  have  formally  proposed  the  amendment  set  out  in  ECE/TRANS/SC.1/GE.21/2023/2 
or  any  similar  amendment  in  substance,  Member  States  shall  object  to  the  proposal  in 
accordance with paragraph (a) of Article 21(2) of the AETR. 

This Decision is addressed to the Member States. 

Done at Brussels, 

Article 4 

For the Council 
The President 

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