1 Working conditions on
interoperable cross-border rail services
| (26365)
6364/05
COM(05) 32
| Draft Directive on the agreement between the Community of European Railways (CER) and the European Transport Workers' Federation (EFT) on certain aspects of the working conditions of mobile workers assigned to interoperable cross-border services
|
| Legal base | Article 139(2) EC; —; QMV
|
| Document originated | 8 February 2005
|
| Deposited in Parliament | 17 February 2005
|
| Department | Transport |
| Basis of consideration | EM of 16 March 2005
|
| Previous Committee Report | None
|
| To be discussed in Council | June 2005
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | For debate in European Standing Committee A
|
Background
1.1 Article 139 of the EC Treaty allows "social partners",
that is, Community level associations deemed to be representative
of labour and management in a given sector, to request the Commission
to propose incorporation into Community law of agreements they
have reached. In January 2004, the Community of European Railways
(CER) and the European Transport Workers' Federation (EFT) concluded
such an agreement, in relation to certain aspects of the working
conditions of mobile workers assigned to interoperable cross-border
rail services, and asked the Commission to initiate the Article
139 procedure.
The document
1.2 The document is a draft Directive which would require Member
States to ensure, legislatively or otherwise, the implementation
of the agreement between the CER and the EFT. The Council may
only adopt the draft Directive without amendment or reject it
totally. The main purpose of the agreement is to supplement the
provisions of the Working Time Directive in relation to daily
and weekly rest periods, breaks and driving time for train crews
working on interoperable cross-border services.
1.3 Workers in the railways sector are already covered
by the provisions of the Working Time Directive. The interoperable
cross-border market has yet to develop — unrestricted rights
of access to the Community rail network for international freight
do not come into force until 1 January 2006 and similar rights
for international passenger services are still under negotiation.[1]
So at present there is no evidence that the existing provisions
are inadequate.
1.4 In the UK, implementation of the agreement would
require new or revised working time regulations. At present the
impact would in effect be limited to Eurostar and Northern Ireland
Railways. English Welsh & Scottish Railway International Ltd
(EWSI) rail freight services through the Channel Tunnel to and
from Calais Fréthun would fall within the scope of permitted
exceptions. Channel Tunnel shuttle services would not be affected
by the proposal. But EWSI is seeking to operate open-access rail
freight services on the Continent, which would be subject to the
conditions in the proposal.
1.5 In the document's explanatory memorandum justifying
the draft Directive the Commission notes that the ERFA (European
Rail Freight Association/Association Européenne du Fret
Ferroviaire), which represents new rail freight enterprises, had
told it that it regretted it had not been involved in negotiating
the agreement. The Commission comments that it is for it to decide,
in accordance with Commission Decision 98/500/EC, whether an organisation
is a social partner and argues that the EFRA does not meet the
required criteria. It says that the CER "represents the vast
majority of enterprises in the sector that employ the majority
of the workers in question". However, of the 24 enterprises
which are affiliates of CER only six would be directly affected
by the agreement, whereas all 45 members of the EFRA would be
affected.
1.6 The document also has a rudimentary impact assessment
of the draft Directive. In the single paragraph about the economic
effects of the proposal the Commission makes no attempt at a quantitative
analysis of the costs and benefits of the agreement. But this
paragraph explicitly claims that the proposal cannot be judged
as restricting access to the market by new enterprises.
The Government's view
1.7 The Parliamentary Under-Secretary of State, Department
of Transport (Mr Tony McNulty) tells us:
"CER and ETF represent the established national
railway industries and large trade union blocs which, before the
European Community began to establish the single market in the
rail sector, were representative of the industry as a whole. They
still represent 95% of the industry. However, with the introduction
of a large number of independent railway operators into the sector,
the CER no longer represents the interests of the industry in
general…. Although UK operators have some representation
within CER, the balance of power understandably lies with the
large continental railway companies."
1.8 The Minister also tells us:
"The industry estimates that, based on the reduced
limit on working hours per shift, the Directive could have the
effect of increasing train driver costs by up to 25% for open-access
operations on the Continent. If, as various industry players assert,
the Directive has a deleterious effect on the competitiveness
of rail freight, freight forwarders might be led to move freight
from rail to road, a modal shift which would have negative environmental
effects."
1.9 On the policy implications the Minister says:
"HMG supports in principle measures to protect
workers' rights. HMG also encourages Social Partner dialogue to
resolve issues between the two sides of industry where appropriate.
However, HMG notes that the workers who would be subject to this
Directive are already covered by the general Working Time Directive
2003/88/EC. This proposal would prevent employers and employees
using the flexibilities currently available to agree other working
conditions to their mutual benefit. The Government is concerned
that this proposal may have an adverse impact on the developing
independent rail sector — which was not party to the Social
Partner negotiations because its own association does not meet
the established criteria — and on the Community's own objectives
for modal shift from road to rail. As noted above, if the Directive
has a deleterious effect on the competitiveness of rail freight,
freight forwarders might be led to move freight from rail to road,
a modal shift which would have negative environmental effects.
In conclusion, the Government believes it would be inappropriate
for the Community to regulate at this time for more restrictive
working time provisions for this class of workers. The Government
notes, however, that exceptionally for Social Partner agreements,
the draft Directive includes a review clause requiring the Commission
to report on the implementation of the Directive within three
years of its adoption."
1.10 The Minister adds on the financial implications:
"EWSI believes the proposal could increase its
train driver costs for future open-access operations on the Continent
by up to 25%. It has recently applied for access rights in France.
Eurostar considers that the proposed definitions of 'working time'
and 'driving time' are unclear, and the strict rules on the provision
of breaks will erode flexibility in rostering."
1.11 The initial Regulatory Impact Assessment attached
to the Minister's Explanatory Memorandum is equally doubtful as
to the value of this proposal.
1.12 Finally the Minister tells us that:
- the Luxembourg Presidency is
keen to make progress on this proposal;
- in recent Working Group discussion few Member
States have expressed an established position on the proposed
Directive;
- a few other Member States have joined the Government
in raising concerns about the representative nature of the employer
social partner and about the lack of any considered impact assessment
by the Commission; and
- it is understood the International Liaison Group
of Government Railway Inspectorates (ILGGRI) is concerned about
potential safety aspects of the proposal and is preparing to set
out those concerns to Member States.
1.13 But he concludes: "However, we do not expect
many Member States to be prepared to challenge an Agreement reached
independently by the Social Partners, given their role in Member
States' policy-making procedures, and therefore it is likely that
the Presidency will be able to establish Qualified Majority support
for the Directive".
Conclusion
1.14 We share the Government's concern about both
the manner in which this proposal has been prepared and its substance.
We recognise the difficulty the Government will have in preventing
a qualified majority emerging in favour of the draft Directive.
However the issues raised are important and warrant a debate in
European Standing Committee A, which we now recommend. In such
a debate Members might examine:
- the
implications for the democratic legislative process of the
Article 139 procedure (which is retained in substantially the
same form in the Constitutional Treaty);
- the scope for the Government to challenge
in the European Court of Justice the exclusion of the ERFA from
the procedure or to encourage the ERFA itself to mount such a
challenge;
- the threat the draft Directive might present
to competition and to employment in the interoperable cross-border
rail sector; and
- the threat it might pose to the Community's
policy of shifting freight from road to rail.
1 As part of the Third Railway Package - see (25436)
7170/05 (25437) 7147/04 (25438) 7172/04 (25439) 7149/04 (25455)
7148/04 (25456) 7150/04: HC 38-iv (2004-05), para 3 (19 January
2005) and Stg Co Deb, European Standing Committee A, 9 March 2005,
cols. 3-18.
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