EUROPEAN COMMISSION
Brussels, 7.3.2017
COM(2017) 117 final
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL
on the implementation in 2013-2014 of Regulation (EC) No 561/2006 on the harmonisation of certain social legislation relating to road transport and of Directive 2002/15/EC on the organisation of the working time of persons performing mobile road transport activities
(28th report from the Commission on the implementation of the social legislation relating to road transport)
{SWD(2017) 100 final}
I.Introduction
This report reviews the implementation by Member States of the four interrelated legislative acts establishing social rules in road transport and their enforcement regime. These legislative acts are: Regulation (EC) No 561/2006, which establishes rules on driving times, breaks and rest periods for professional drivers; Directive 2006/22/EC, which determines minimum requirements for enforcement of these rules; Council Regulation (EEC) No 3821/85 on recording equipment, i.e. main tool to control the drivers' compliance with social rules and Directive 2002/15/EC, which sets out complementary provisions on the organisation of the working time of persons performing mobile road transport activities (here-after "the Road Transport Working Time Directive). The Commission is currently evaluating the Regulation (EC) No 561/2006 and intends to table a proposal for a targeted revision in 2017 as part of the Road Initiative.
Article 17 of Regulation (EC) No 561/2006 requires Member States to communicate every two years the necessary information to enable the Commission to draw up a report on the application of that Regulation and the developments in the fields in question. Article 13 of Directive 2002/15/EC provides that Member States should report to the Commission on the implementation of the Directive, indicating the views of the two sides of the industry. The reports on Directive 2002/15/EC and Regulation (EC) No 561/2006 can be presented in one single document as both legislative acts cover the same two-year reporting period and establish complementary rules for professional drivers engaged in the carriage of goods or passengers.
This report covers the period of 1 January 2013 to 31 December 2014. It is based mainly on the national reports, for which the submission deadline expired on 30 September 2015. Its aim is to provide an overview of how Member States have implemented the above-mentioned set of legislative acts and to highlight the key challenges in enforcement and application of the rules in force. The report contains both quantitative and qualitative data on checks carried out at roadside and premises, offences detected as well as information on the implementation of Road Transport Working Time Directive. The Commission report is complemented by a Commission Staff Working Document that contains supplementary information on penalties, cooperation between Member States, comments from enforcement authorities and detailed statistical data.
The report comprises four sections that cover various aspects of implementation of social legislation. Section I summarizes the quality and timeliness of national data submissions. Section II provides a full analysis of the national quantitative data provided on the checks performed and offences detected, whereas Section III gives a descriptive outline of the Member States implementation of Directive 2002/15/EC. Section IV presents the main conclusions drawn.
Objectives and key provisions of social legislation in road transport, as well as other aspects and detailed statistics concerning the results of checks carried out, are described in the Commission Staff Working Document accompanying this report.
Data submission
The national reports on the implementation of the provisions of Directive 2002/15/EC and Regulation (EC) No 561/2006 should be submitted by means of the standard form set out in Commission Decision 2009/810/EC. This standard form combines the reporting requirements of these two legislative acts, and by means of an interactive reporting format gathers quantitative and qualitative data that constitutes a crucial input to this report.
The Commission notes that in general Member States provided national reports of slightly better quality and timeliness then in the previous years. This applies in particular to data on the implementation of Regulation (EC) No 561/2005. However, further improvements are encouraged as regards the national data collection process. More in-depth description of data submission is included in the Commission Staff Working Document accompanying this report (hereafter "the accompanying document").
In addition, Member States informed the Commission of the exceptions granted from the application of provisions on driving times, breaks and rest periods in accordance with Article 13 of Regulation (EC) No 561/2006. The updated list of exceptions is included in the accompanying document and available on the Commission's website.
II.Analysis of data on implementation of Regulation (EC) No 561/2006
1. Checks
According to Article 2 of Directive 2006/22/EC, Member States should organise a system of appropriate and regular checks, both at the roadside and at premises of undertakings of all transport categories. These checks should cover each year a large and representative cross-section of mobile workers, drivers, undertakings and vehicles. Paragraph 3 of Article 2 requires that the minimum number of checks in 2013 and 2014 should cover at least 3% of days worked by drivers of vehicles falling within the scope of Regulation (EC) No 561/2006.
Graph 1 – Total number of working days checked per Member State
Graph 1 gives an overview of the number of working days checked in each Member State, in the current and previous reporting periods. On average the total number of working days checked in the EU noted a decrease of 4.8% from 158.6 to 151 million working days checked. In addition, it should be noted that this reporting period, for the first time included data from Croatia, which added 0.5 million of working days checked.
Although the overall number of checks remains high, numbers generally decreased in 2013 - 2014. Looking closely at the number of working days effectively checked in relation to the minimum number of working days to be checked (Graph 2), it is noticeable that the majority of Member States performed more checks than required by Directive 2006/22/EC. There are four Member States, which did not meet the threshold: i.e. Croatia, Lithuania, the Netherlands and Greece. While the first three Member States were slightly below the threshold, the extent of disparity between the threshold and the number of checks reported in Greece remains considerable. Therefore, the Commission will continue monitoring the developments in these Member States and starting from the most severe cases will take action to assure the correct application of Directive 2006/22/EC.
Detailed description of compliance with the threshold is presented in the accompanying document.
Graph 2: Percentage of working days checked per Member State
Regarding the type of controls, Article 2 of Directive 2006/22/EC sets out the ratio between the number of roadside controls (in terms of working days to be checked) and the checks at premises, which should amount to at least 30% and 50% respectively. It should be emphasised that pursuant to Article 2 of Directive 2006/22/EC the calculation of this proportion is based on the number of checks actually performed by each Member State and not on the minimum number of working days to be checked. Nevertheless, for the current reporting period most of the controls are performed at the roadside. On average 77% of all controls took place at the roadside, which shows slight improvement from 80% in the previous reporting period. Only Ireland was below the 30% threshold for roadside checks.
1.1 Roadside checks
In total over the period of 2013 and 2014 more than 6.6 million vehicles and approximately 7.4 million drivers were controlled during checks at the roadside. These values stand for decreases of respectively 23.9% and 15% in relation to the previous reporting period and mark a continuation of the downward trend noted in former reports. The reason for a higher number of drivers checked than a number of vehicles is twofold: the double manning as well as missing data on this matter from Denmark on the number of vehicles checked at roadside.
The drop of 15% in the absolute number of drivers controlled at roadside is not matched by the corresponding increase in the number of drivers controlled at premises and results in the overall decrease in the numbers of drivers checked both at roadside and premises of 13%.
Checks in Member States, involved in the majority, national vehicles and drivers and equalled respectively 65% and 64% of all vehicles or drivers checked at roadside. In six Member States, namely Austria, Belgium, France, Luxembourg, Malta and Slovenia, the pattern is reversed and more non-national vehicles were subject to a control. This in some cases may be explained by the size or geographic position of these Member States. Detailed rates are incorporated in the accompanying document. As non-discrimination is one of the fundamental principles of the EU Treaties and a key requirement for carrying out roadside checks, the Commission may consider taking appropriate measures in order to ensure the equal treatment of drivers and operators in Member States where the checks are performed more frequently in regard to non-resident drivers and operators.
1.2 Checks at premises
The number of undertakings checked by Member States remained steady. The increase of approximately 1% was noted in comparison with the reporting period of 2011-2012. However, it should be taken into account that this report includes for the first time the data from Croatia and Finland. In the current reporting period it amounted to 147 606 undertakings checked, which covered checks of almost 756 thousand drivers across the EU. Over 34.4 million working days were checked at premises, which signifies that the rate of growth slowed down as an increase between the reporting periods of 2009-2010 and 2011-2012 equalled to 17%, while it grew by 11% between the current and the last period. Therefore as the comparable number of undertakings checked resulted in the increased number of working days checked, it can be assumed, with other factors remaining stable, that the efficiency of the checks at premises increased significantly.
2. Offences
All Member States provided data on offences detected, though with a divergent level of details. The downward trend in the number of offences that started from the previous period 2011-2012 was maintained and in the current reporting period marked a decrease of 15% versus the last period in the number of offences detected. In real values it shows a decline from approximately 3.9 million reported in the period 2011-2012 to almost 3.3 million in the current reporting period. This decrease is driven by the considerable drop of 25% of offences detected at premises together with 7.7% decrease at roadside.
This change could suggest an improved compliance with the provisions of social legislation thanks to well-established enforcement practices and greater awareness of social rules among drivers. However, this positive effect might be mitigated by the decrease of 4.8% in the number of working days checked or other factors such as, for example, tachograph manipulation practices distorting findings from the controls.
The table below shows that proportions between categories of infringements maintain similar levels compared with the previous reporting periods. The slight decline observed for offences on breaks and driving time is counterbalanced by increases in the offences concerning rest periods, lack of records for other work and recording equipment offences.
|
Period
|
Breaks
|
Rest periods
|
Driving time
|
Driving time records
|
Recording equipment
|
Lack/availability of records for other work
|
|
2013-2014
|
23%
|
25%
|
16%
|
17%
|
10%
|
8%
|
|
2011-2012
|
26%
|
24%
|
19%
|
17%
|
8%
|
6%
|
|
2009-2010
|
29%
|
23%
|
18%
|
15%
|
5%
|
8%
|
|
2007-2008
|
30%
|
25%
|
20%
|
14%
|
10%
|
1%
|
Table 1 - Categories of infringements detected at roadside and premises
Graph 3 – Categories of infringements detected at roadside and premises
Categories of infringements detected at roadside and premises are described separately in the accompanying document.
Compared to the previous reporting period, in 2013-2014 the average rate of offences detected declined by 11% and equalled to 2.17 offences per 100 working days checked. It appears that checks at premises continue to be more effective than ad-hoc roadside controls as the detection rate at premises is 2 times higher than at roadside. It is, however, to be noted that in the previous reporting period, the detection rate at premises was 3 times higher as a detection rate at roadside and in the preceding period 2009-2010 it was 5 times higher. This change is due mainly to a considerable drop in detection rates at premises from 5.29 in years 2011-2012 to 3.54 in this reporting period. There are vast disparities in offence detection rates at premises per 100 days checked between Member States ranging from 0.02 in Bulgaria, 0.03 in Latvia and Portugal to 14.01 in Germany and 7.65 in the Netherlands.
It seems that the change in the EU average offence detection rate at premises is affected by a significant decline for the second time in a row (by 29% between the previous and current reporting period) in the number of reported offences at premises in Germany, which in this reporting period still had the largest share of all offences detected at premises in Europe (51%).
Graph 4 – Number of offences detected per 100 working days checked in 2009-2010, 2011-2012 and 2013-2014
Despite divergent fluctuations in different Member States regarding the number of offences detected per reporting period, on average there is a distinctive decrease in the number of offences reported. Detailed description of detection rates in Member States is included in the accompanying document. These discrepancies in detection rates reveal that the European Union is far from establishing a harmonised enforcement area because of diverging enforcement resources and practices in controlling compliance with road transport legislation, as well as diverging penalty systems.
2.1 Offences detected at roadside
In the period 2013-2014, 2.05 million roadside offences were detected at European level, which constituted 63% of all detected offences both at roadside and premises. This indicates a decline in quantitative terms by almost 172 thousand, which means by 7.7% as compared to the previous reporting period. Per each 100 working days checked 1.77 offences have been detected compared to 1.74 in the previous reporting period.
On average 66% of offences were detected on national drivers, which correlates with the 66% rate of national drivers checked in Europe. However, there are Member States where the number of detected offences related to non-nationals prevails, namely Luxembourg (78%), Sweden (67%), Lithuania (65%), Belgium (64%), Bulgaria (59%), Slovenia (58%), Austria (58%) and France (54%).
This trend can be explained by the fact that all the above Member States performed more controls of non-national drivers apart from Bulgaria, Lithuania and Sweden. In the case of these three Member States, the offences detected by non-residents are disproportionately more frequent. In the case of Bulgaria where 36% of non-national drivers checked equalled 59% of offences committed, Sweden which performed 42% controls on non-national drivers which resulted in 67% of offences detected and Lithuania with 44% of non-national drivers checked led to 65% of offences detected at roadside. The increase of offences committed by non-residents might be alarming in Sweden where the rate continues to raise from 31% in 2009-2010 to 57% in 2011-2012 and 67% in the current reporting period.
2.2 Offences detected at premises
During the current reporting period, Member States reported altogether over 1.2 million offences detected at premises of undertakings, constituting 37% of an overall number of offences. This marks a decrease of 25% as compared to the previous biennial period. These figures should be seen in correlation with the steady number of undertakings checked which augmented by 1%. Taking into consideration these two aspects, the constant improvement in compliance with social rules could be noted.
In terms of frequency of offences reported per 100 working days checked, the European average marked a positive tendency and decreased from 8.65 in 2009-2010 to 5.29 in 2011-2012 to 3.54 in the current reporting period. This decrease in frequency of violations detected can indicate that all the activities aiming at better compliance with social legislation in road transport start to yield results.
III. Data analysis on the implementation of the Road Transport Working Time Directive (Directive 2002/15/EC)
1.Introduction
This chapter deals with the implementation by Member States in 2013-2014 of Directive 2002/15/EC, also referred to as the "Road Transport Working Time Directive". According to Article 13 of this Directive, Member States are obliged to submit a report on its implementation to the Commission every two years, indicating the views of employees and employers at national level. Descriptive parts on the transposition of this Directive in Member States, stakeholders' views on implementation and monitoring, control arrangements in Member States and enforcement issues are included in the accompanying document.
2.The scope of Directive 2002/15/EC
The Directive establishes rules governing, inter alia, adequate breaks during the working period, the maximum average working week and night work. Its provisions supplement the rules on driving times, breaks and rest periods established by Regulation (EC) No 561/2006.
As this Directive lays down certain provisions concerning hours of work that are specific to the road transport sector, it is regarded as a lex specialis to the general Directive 2003/88/EC on working time, which establishes basic requirements for the organisation of working time for all workers. However, the Charter of Fundamental Rights of the European Union contains provisions concerning working time and working conditions under its Article 31, which have to be respected when implementing EU law. A number of basic protection provisions of the general working time Directive, including rules on annual leave and free health assessment for night workers, are also applicable to mobile workers in road transport.
3.Submission and quality of national reports
A common reporting format was established by the Commission in order to facilitate the reporting efforts of Member States, to reduce administrative burden and to prevent excessive delays in the submission of Member States reports. However, the quality of submissions varies significantly. Several Member States provided very scarce and incomplete information or indicated that there were no changes as compared to the previous period. The national reports from remaining twenty Member States included information on implementation of Directive 2002/15/EC in terms of institutional organisation, monitoring challenges as well as some statistics on carried out checks and detected offences and in general the process of imposing sanctions. Nevertheless, due to incomplete submissions, the results of this analysis cannot be considered as representative for the whole European Union.
4.Implementation aspects in Member States
Following the previous reporting period, during which many Member States informed on amendments of their legislative framework in order to include self-employed drivers in its scope, this reporting period resulted in two notifications from Malta and Poland. In Malta the amendments to the Motor Vehicle Regulations and Passenger Transport Services Regulations were drafted to fully transpose the requirements of the Directive to include self-employed drivers and will be published shortly. In Poland the law covering self-employed drivers with the working time rules entered into force on 16 July 2013.
Directive 2002/15/EC was perceived as a good set of arrangements that helped to deal with definition of working time and its limits. Germany noted that the Directive together with the driving times and rest periods of Regulation (EC) No 561/2006 by ensuring the minimum conditions for the organization of working time in road transport, contributes towards guaranteeing the safety and health protection for the employees as well as to general road safety in the EU. Furthermore these rules prevent distortions of competition due to exploitation of employees. Therefore, Germany considers that there is no urgent need to change the Directive. Along the same lines, the Stakeholder Working Group set up in the UK concluded that it would not be advisable to reopen negotiations on the legislation covering drivers' working time due to the risk of increasing the complexity and burdensomeness of the regime.
However, several Member States raised their concerns as regards the inclusion of self-employed drivers in the scope of the rules. Finland considers that the obligations concerning self-employed drivers under the Directive should be repealed, because it creates unnecessary administrative burdens and Regulation (EC) No 561/2006 provides adequate rules for self-employed drivers. Belgium stated that in practice it is nearly impossible to control the application of the rules as it is undesirable to disturb the rest of the self-employed drivers with the controls. Additional difficulties when inspecting self-employed drivers were indicated by Bulgaria, which referred to an issue of selecting drivers for a control as there is no official list indicating the number or location of self-employed drivers. According to Bulgarian law self-employed drivers are not falling within the scope of the obligation to keep record of working times and working arrangements available for inspection at their business premises and to designate the person who is given the task of presenting these records on demand by the Labour Inspectorate. In addition, binding instructions cannot be issued by the Bulgarian Labour Inspectorate to the self-employed-drivers.
Despite other mentioned issues in relation to monitoring the compliance with the rules (described in the Commission Staff Working Document accompanying this report), it is worth noting that Member States put a big emphasis on providing guidance on how to comply with the provisions of this Directive and to raise the awareness of the rules in place.
4.1Offences against working time rules
Seven Member States, namely Austria, Estonia, Finland, Germany, Hungary, Ireland and Sweden informed about the possibility in the first instance when the deficiency is detected to order its rectification within a defined period. In the absence of the correction the infringement is then pursued by the enforcement authorities in accordance with the national arrangements; i.e. imposition of a penalty, bringing a charge before the relevant body or initiating the prosecution. This system is perceived as advantageous by enabling offenders the possibility to change their behaviour, implement new procedures, use new technologies or adjust their practices to increase compliance with the rules in place.
Ten Member States provided statistics on offences detected, which is not sufficient for any global conclusions to be drawn. As in comparison with the previous reporting period four more Member States provided data on infringements. All Member States are invited to include this information in the next reports.
5. Stakeholders' views on implementation of Directive 2002/15/EC
Only ten Member States confirmed that stakeholders had been consulted, as required by Directive 2002/15/EC, which marks a significant decline as compared to the reporting period of 2011-2012, when sixteen Member States indicated the fulfilment of this obligation.
In general, there was a consensus among employers and employees that Directive 2002/15/EC contributed to health and safety protection of drivers. In Ireland, the employers expressed an opinion that limitations on working time contributed as well to a level playing field amongst operators. More detailed views of the consulted parties are included in the accompanying document.
IV. Conclusions
This report analyses implementation and enforcement developments over a 2013-2014 period in all Member States, in the context of compliance with the EU social rules in the road transport sector.
The scope of this document is set out by Directive 2006/22/EC and Commission Decision 2009/810/EC that define standard data on Regulation (EC) No 561/2006 and Directive 2002/15/EC to be submitted; mainly number and type of controls carried out and number and types of offences detected. In this reporting period, the quality and timeliness of submissions remained comparable to the previous reporting period which enabled the Commission to draw conclusions on the application of the road transport social rules at European level.
The majority of Member States complied with the minimum threshold of working days checked required by Directive 2006/22/EC and often exceed it significantly. However, a few Member States did not meet this threshold. Moreover, only half of Member States reached the threshold of the minimum number of concerted checks, which shows deterioration in comparison with the previous period in terms of the amount of international initiatives undertaken. Cooperation takes place mostly between neighbouring Member States and is complemented by actions within the framework of Euro Contrôle Route (ECR), which puts in place collaboration on a bigger scale.
In order to create a level playing field in the transport sector, there is a need to improve and align the enforcement of transport-related social legislation across the EU. Therefore, the Commission will not only thoroughly follow and investigate these cases in order to bring Member States in compliance with the minimum requirements of the social legislation but also envisages taking measures aiming at strengthening the enforcement of the social rules in road transport.
Moreover, Member States failed, despite a slight improvement, to reach the threshold of having at least 50% of the total working days checked at premises and the vast majority of checks took place at the roadside. The Commission will monitor developments in this field. Should there be no improvements observed in the next reporting period in respective Member States the Commission will launch an official enquiry with those Member States failing to comply with the requirement for checks at premises.
According to Article 2(3) of Directive 2006/22/EC, the threshold of minimum checks of number of days worked by drivers of vehicles should be raised to 4% once 90% of all vehicles checked are equipped with a digital tachograph. In this reporting period 64% vehicles checked at roadside were equipped with the digital tachograph. Hence, there is no base for raising the minimum threshold of checks to 4% of days worked by drivers.
It is important for the national authorities to guarantee that checks are being performed without discrimination on the basis of nationality of drivers/Member State of registration of vehicles. Member States should thoroughly examine their data and instruct control authorities accordingly in order to avoid the unequal treatment of non-nationals.
The report shows that certain improvements in the enforcement and implementation of the legislation on social rules have been observed. The downward trend in the number of offences that started from the previous period 2011-2012 was maintained. The overall decrease in the number of offences detected could be interpreted as an improved compliance with the provisions of social legislation thanks to well-established enforcement practices and greater awareness of social rules among drivers.
The analysis of detection rates at roadside and at premises indicates that checks at premises remain more efficient than ad-hoc roadside controls. Discrepancies in detection rates between Member States reveal that the European Union is far from establishing a harmonised enforcement area because of diverging enforcement resources and practices in controlling compliance with road transport legislation.
During this reporting period, the infringement consisting in the manipulation of the recording equipment increased noticeably. Therefore, the appropriate enforcement techniques, equipment, training of control officers, etc. enabling targeted controls and detecting manipulation devices and fraud became more needed than ever.
In view of addressing this issue, and as required by Article 39 of Regulation (EU) 165/2014 on tachographs in road transport, the Commission is preparing the implementing act specifying the content of the initial and continuing training of control officers, including training in relation to techniques to target controls and to detect manipulation devices and fraud. Those measures will include guidelines to facilitate the implementation of the provisions on driving times, breaks and rest periods, as well as the implementation of the provisions on tachographs.
The national reports on implementation of Directive 2002/15/EC, due to their incompleteness, do not allow for in-depth analysis of impacts of this legislative act on health and safety of drivers or on road safety. The inclusion of the self-employed drivers in the scope of the working time rules is sometimes perceived as causing enforcement issues. Only ten Member States confirmed that stakeholders had been consulted. In general, social partners recognised that appropriate enforcement of Directive 2002/15/EC is a precondition to assure adequate working conditions and undistorted competition.
This report is published at the same time as the report referred to in Article 26 of Regulation (EC) No 1071/2009 of the European Parliament and of the Council of 21 October 2009 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator and repealing Council Directive 96/26/EC, as required by paragraph 2 of that Article.