3 Driving time limits
| (24843)
12168/03
COM(03) 490
| Amended draft Regulation on the harmonisation of certain social legislation relating to road transport and amending Council Regulation (EEC) No. 3821/85 on recording equipment in road transport.
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| Legal base | Article 71 EC; co-decision; QMV
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| Document originated | 11 August 2003
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| Deposited in Parliament | 8 September 2003
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| Department | Transport |
| Basis of consideration | EM of 8 October 2003
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| Previous Committee Report | None; but see (22856) 12934/01: HC 152-xxxviii (2001-02), paragraph 18 (16 October 2002)
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| To be discussed in Council | Not known
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; Further information awaited
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Background
3.1 The current Regulation[6]
concerning the driving and rest times of drivers of heavy vehicles
has been in force since 1985. The legislation was intended to
provide a common set of Community rules for maximum daily and
fortnightly driving times as well as daily and weekly minimum
rest periods for all drivers of road haulage and passenger transport
vehicles, subject to specified exceptions and derogations. It
sets maximum limits on driving time and minimum requirements for
breaks and rest periods for most heavy goods vehicle drivers and
about half the bus and coach drivers operating in the UK. Enforcement
is made possible by the requirements laid down in Council Regulation
(EEC) 3821/85 for most drivers to use a tachograph to record their
daily activities. However, according to the Commission, there
have been difficulties in interpreting and applying the legislation.
3.2 In October 2001 the Commission proposed a draft
Regulation to replace the existing one. We cleared this document
in October 2002.[7]
The document
3.3 This amended draft Regulation replaces the Commission's
earlier proposal. It incorporates some of the first reading amendments
to the earlier proposal made by the European Parliament, and other
changes addressing some of the issues raised by Member States
in the Transport Council's Working Group.
3.4 The draft seeks to clarify and simplify the legislation.
Although it proposes some small changes to total driving times
and rest periods, the changes do not materially change the main
limits on driving and rest periods. It would
also amend Council Regulation (EEC) 3821/85 on tachographs to
rectify missing elements important to the enforcement of drivers'
hours with digital tachographs.
3.5 The aims of the draft Regulation are:
- to clarify the scope of the
existing legislation by setting out more clearly the circumstances
in which the European Agreement concerning the Work of Crews of
Vehicles engaged in International Road Transport (AETR) applies
to international road traffic operations to and from the Community;
- to clarify the main categories of vehicles affected,
namely goods vehicles over 3.5 tonnes (unchanged), passenger vehicles
suitable for carrying more than nine persons (previously 17 persons
by virtue of a national derogation), goods vehicles between 2.8
and 3.5 tonnes on "international point to point journeys"
(new) and vehicles registered in third countries, not a contracting
party to the AETR, whilst on journeys in the EU (new);
- to define all the terms in the Regulation so
as to avoid individual interpretations which have led to many
cases being referred to the European Court of Justice, and to
variations in the way the Regulation is enforced in different
countries in the EU; and
- to rectify internal inconsistencies and to remove
complex daily and weekly rest compensation arrangements which,
in some cases, make enforcement less effective and which prevent
compliance with the Regulation being monitored by digital tachographs.
MAIN CHANGES TO DAILY AND WEEKLY REST
3.6 changes to daily and weekly rest. The main proposed
changes to daily and weekly rest include:
- Driving time — a weekly
maximum of 56 hours, reduced from 58 hours, which supplements
the existing provision specifying 90 hours a fortnight;
- Breaks — a 45 minute break after 4 hours,
or two breaks of 15 minutes and 30 minutes, in that order;
- Daily rest — increased by one hour to 12
hours, but still reducible to nine hours three times a week; and
- Weekly rest — will still be 45 hours. Weekly
rest is reducible to 24 hours when away from base and to 36 hours
at base, but is to be made up subsequently.
NATIONAL EXCEPTIONS
3.7 exceptionsThe proposal allows a Member State
to apply longer minimum breaks and rest periods or reduce the
maximum driving times compared with those laid down. In addition,
Member States may grant exceptions to the limits on rest periods
to particular categories of vehicles, including agricultural vehicles,
certain classes of publicly or utility owned vehicles, vehicles
on small islands or in areas of low population density and minibuses
used by non-commercial bodies for social purposes.
ENFORCEMENT
3.8 New enforcement measures include:
- placing responsibility for
compliance on operators (including consignors, freight forwarders
and others) and requiring operators to check that drivers comply;
- allowing extraterritorial jurisdiction
(which is already implied in the existing Regulation) for offences
committed abroad by drivers since their last weekly rest period;
- making operators liable for all offences committed
by drivers for the operators benefit, including offences committed
abroad, unless a driver acts outside the operators instructions,
or where a driver undertakes secondary driving or work without
an operators knowledge;
- requiring drivers working for more than one employer
to provide sufficient information to all employers to enable them
to organise work in compliance with the rules;
- immobilising vehicles when offences relating
to drivers hours and liable to endanger road safety are detected;
- using tachographs where fitted to public service
vehicles operating on regular national services, as opposed to
the existing requirement of duty rosters and timetables;
- requirements to keep digital tachograph printouts;
- including information about tachograph enforcement
by Member States in the biennial enforcement return to the Commission;
- exchanging information, including intelligence,
between Member States and the Commission; and
- designating the allMember State tachograph
technical committee to assist the Commission in overseeing the
implementation of this Regulation.
The Government's view
3.9 When we considered the original draft the Parliamentary
Under-Secretary of State, Department of Transport (Mr David Jamieson)
told us that the Government accepts the need to amend existing
Community legislation on drivers hours in order to remove certain
problems and outdated exemptions which make effective enforcement
and the introduction of digital tachographs difficult. He welcomed
the fact that the main elements of the existing legislation would
remain unchanged, since the driving times are well understood
by industry and are the basis on which the physical infrastructure
of the industry — distribution centres, etc — has
been established."
3.10 In relation to the amended draft Regulation
the Minister says:
"The Government accepts that it is necessary
to apply the EU drivers' hours rules to drivers of vehicles registered
in a non-EU country which is not a contracting party to the AETR
Agreement (which is the UN agreement under which the EU rules
on drivers' hours and tachographs are extended into contracting
countries) but which is engaged in international transport within
the EU.
"The extension of scope to include drivers of
light vans between 2.8 & 3.5 tonnes on international point
to point journeys (not defined) has considerable implications
and could be problematic for a number of reasons. It would also
bring employee drivers in this category into the scope of the
Directive on the organisation of working time for mobile transport
workers — 2002/15/EC. The impact of the change is difficult
to gauge. There are 2.5 million registered light goods vehicles
(3.5 tonnes and below) in Great Britain — compared with
approximately 400,000 HGVs within scope of the drivers' hours
rules. We estimate that about 1.6 million light goods vehicles
fall within this weight range and could be used for operations
within the scope of the drivers' hours rules. But we do not know
what proportion of this number travel abroad. We suspect that
the proportion is small, in the region of 5-10%, in which case
the maximum number of vehicles affected would be 80-160,000 —
still a large number compared with the number of HGVs currently
in scope of the drivers' hours rules.
"This extension of scope would apply to existing
vehicles and so affected vehicles would have to be retro-fitted
with tachographs at a cost of approximately £500 per vehicle.
There would also be major implications for the enforcement authorities
given the increase in the number of tachograph charts that would
need to be checked. If the number of light vans travelling abroad
is as estimated, the current EU requirement to check 1% of days
worked by drivers would result in an 18%-36% increase in the number
of charts checked each year. Also, and more importantly, given
that most drivers' hours enforcement is retrospective, it would
be difficult for the enforcement authorities to know after the
event whether a light van had been used abroad. The Commission
has provided no cost-benefit analysis or regulatory impact assessment
of this extension of scope.
"On the exemptions, extending the operating
radius of breakdown vehicles to 100km would address one of the
UK'S concerns. Similarly, the Government has no difficulty with
the proposed exemption for historic vehicles as the Commission
has already granted the UK a special dispensation to exempt such
vehicles. But a definition of a 'historic vehicle' is needed.
"On definitions, the Government accepts the
reintroduction of a 'calendar week' and 'reduced weekly rest'
…. and can accept the definition of a 'break', and that of
a 'regular daily rest period' because these are all improvements
on the existing situation and should be more enforceable. But
the definition of 'carriage by road' should be 'roads open to
the public' and not 'open roads'. Linking the definition of 'other
work' with that in the Directive on the organisation of working
time for mobile transport workers — 2002/1 5/EC —
would also mean having to amend Article 15(3) of Regulation 3821/85.
The definition of 'multi-manning' would also make it impossible
to establish, during the first hour of driving, that a multi-manning
operation exists and, therefore, what the applicable daily rest
period is.
"The UK was instrumental in seeking to ensure
that mixed (in and out of scope) driving on the same day is taken
into account for the purposes of calculating driving time limits.
But the proposed change needs re-drafting otherwise private driving
and driving in an emergency (for example, a part-time fireman)
would be captured as well.
"The change to the break requirement is a slight
improvement on the existing situation which currently allows the
45 minute break to be split into three lots of 15 minutes and,
as a result, driving of up to 9 hours with only one 15 minute
break. Under the new proposal, the second, and critical, 15 minute
break would be replaced by a 30 minute break.
"The proposal to allow a weekly rest period
to be taken early in week 1 and late in week 2 — thus enabling
a driver to drive for up to 10 consecutive days — is, we
think, intended to address the concerns of the coach industry
at the loss of the existing provision which allows certain coach
drivers to drive for up to 12 days before having to take a weekly
rest (the so-called 12 day rule). But, as drafted, it would apply
also to drivers of goods vehicles which, we assume, is not the
intention. Moreover, there has been no support from Member States
at the Council Working Group for the reinstatement of any form
of postponed weekly rest for coach drivers. We have no difficulty
with reinstating the provision that allows a driver to take a
reduced weekly rest period at base, but not the compensation requirement.
One of the main purposes of the original proposal was to do away
with all forms of compensatory rest which are complicated and
difficult to enforce.
"The national derogation for minibuses used
by 'non-commercial bodies for social purposes' is intended to
address UK concerns about the impact upon the voluntary sector
of bringing minibuses into scope. However, it is not the organisations
that need to be non-commercial but the minibus operations themselves
otherwise, for example, minibuses operated by state run comprehensive
schools would be exempt but those operated by private schools
would not. Redrafting is required.
"The new derogation for vehicles used within
pre-defined areas with low population density also lacks clarity.
It refers to a population density of 5 persons per square kilometre
but it does not make clear how large or small said areas have
to be to qualify. So for example, a bus route crossing, or a lorry
using a quarry, in Dartmoor might qualify.
"Extending the obligation on undertakings to
ensure that driver's comply with the requirements of this Regulation
to include consignors, freight forwarders, prime contractors,
sub-contractors and driver employment agencies (a form of consignor
liability) takes no account of the fact that only transport operators
have control over drivers' movements and access to the necessary
records. Consignors, freight forwarders etc, could not be expected
to ensure compliance with the drivers' hours rules.
"The change from 'penalties' to 'non-discriminatory
sanctions', and from vehicle 'impounding' to 'immobilisation',
reflects the more general acceptance of these terms in discussions
at the Council Working Group. But 'immobilisation' is still a
term that applies to a vehicle and in fact it is the driver who
is prohibited from driving (as is the already practice here) until
adequate rest has been taken. There would be no justification,
for example for 'immobilising' a vehicle if an operator provided
a fresh driver.
"The requirement for Member States regularly
to send each other and the Commission information on the national
interpretation and application of the provisions of this Regulation
would be bureaucratic and serve little purpose.
"The various amendments that relate to the introduction
of digital tachographs are intended to improve enforcement and
are the result of suggestions originally made to the Commission
by the UK. The requirement to download data from digital tachographs
and to make the data available from the company premises' will
enable enforcers to check to see whether companies are complying
with the drivers' hours rules. Most drivers' hours enforcement
consists of retrospective checks at company premises. Companies
using vehicles fitted with existing tachographs are already required
to keep their drivers' record sheets for at least one year. This
allows enforcers to check charts at company premises and obtain
a complete picture of the working and resting patterns of that
company's drivers.
"Without a downloading requirement, companies
using digital tachographs would not be under any obligation to
keep tachograph records at their premises. Whilst enforcers could
gain access to data directly by inspecting vehicles and driver
cards, this could only be done in an inefficient and piecemeal
fashion. It would become easier for less reputable companies to
hide offences, increasing safety risks.
"The requirement to make printouts when driving
without a card would close a loophole in the digital tachograph
legislation. This would allow driving without a card for up to
15 days — to provide for example, for situations where drivers
are waiting for a new card to replace one which has been lost
or stolen. But in such situations, the digital tachograph records
only driving activity but not the driver. Some drivers may be
tempted to take advantage of this loophole by 'mislaying' their
card. The requirement to make and sign a print-out at the beginning
and end of any journey undertaken without a driver card would
mean that drivers will still need to keep a proper record of such
events or risk prosecution. Companies would be required to keep
printouts for at least a year.
"The requirement for drivers to use the manual
entry facility on the digital tachograph to record rest, breaks,
availability and other work is of critical importance to drivers'
hours enforcement and successive UK Ministers have argued strongly
for this. Currently, drivers must keep a written record on the
back of the tachograph chart of their activities when away from
their vehicle. These 'manual entries' record non-driving work
and are essential to the enforcement of rest. Unfortunately, when
EU Regulation 3821/85 was amended to provide for digital tachographs,
the requirement to make manual entries was not extended to digital
tachographs. If not corrected, drivers who use vehicles with digital
tachographs would not be required to make a record of whether
or not they were resting when they were away from the vehicle.
This would make it virtually impossible to enforce the rest requirements.
"We strongly support all these digital tachograph
amendments in principle — although we shall be arguing for
some drafting improvements."
3.11 The Minister tells us that the views of the
road transport industry and others are already known, but that
his Department is continuing to consult the main road transport
associations as necessary.
Conclusion
3.12 We note that, despite a considerable revision
of the proposal, there are a number of issues on which the Government
has reservations. We observe in particular that the extension
of the scope of the legislation to cover vans between 2.8 and
3.5 tonnes has not been tested by the Commission against a cost-benefit
analysis or a regulatory impact assessment.
3.13 Before considering this document further
we should like to hear from the Minister about:
- progress in getting from
the Commission a cost-benefit analysis and a regulatory impact
assessment;
- the views of the road transport associations
and other interested parties on the revised proposals; and
- the Government's view of whether the revised
proposal achieves a balance between the social and safety need
to limit the driving hours required of drivers and the economic
needs of the road transport industry and its customers.
6 Council Regulation (EEC) No.3820/85. Back
7
See headnote. Back
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