EUROPEAN COMMISSION
Brussels, 30.9.2021
COM(2021) 610 final
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL
on the implementation in 2017-2018 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
(30th report from the Commission on the implementation of the social legislation relating to road transport)
{SWD(2021) 278 final}
Introduction
This report gives an overview of the implementation of the EU social rules in road transport in the Member States for the period of 1 January 2017 until 31 December 2018. It highlights the key challenges in enforcement and application of the relevant legal provisions, which are set out in the following four legislative acts:
1) Regulation (EC) No 561/2006
(also known as the Driving Time Regulation) establishing the minimum requirements on daily and weekly driving times, breaks and daily and weekly rest periods;
2) Directive 2002/15/EC
(also known as the Road Transport Working Time Directive) laying down the rules on the organisation of the working time of mobile workers. It establishes the requirements on maximum weekly working times, minimum breaks in work and night time work. It applies to drivers within the scope of the Driving Time Regulation;
3) Directive 2006/22/EC
(also known as the Enforcement Directive) establishing minimum levels of roadside checks and controls at the premises of transport undertakings to verify compliance with the provisions of the Driving Time Regulation;
4) Regulation (EU) No 165/2014
(also known as the Tachograph Regulation) setting the requirements on the installation and use of tachographs in vehicles within the scope of the Driving Time Regulation.
This report, based on Article 17 of the Driving Time Regulation and Article 13 of the Road Transport Working Time Directive
, comprises quantitative and qualitative data on checks carried out by the Member States’ control authorities at the roadside and at the premises of undertakings, as well as on offences detected.
The report is structured into three sections: Section I provides the analysis of the national data on checks and offences in the implementation of Directive 2006/22/EC and Regulation (EC) No 561/2006 whereas Section II gives a descriptive outline of the implementation by the Member States of Directive 2002/15/EC. Section III draws the main conclusions of this report. A Commission Staff Working document complements the Commission report with supplementary information on penalties, cooperation between Member States, comments from enforcement authorities, and more detailed statistics.
Data submission
The national reports on the implementation of the provisions of Directive 2002/15/EC and Regulation (EC) No 561/2006 must be submitted by 30 September of the year following the end of the two-year period concerned, by means of the revised standard reporting form established by the Commission Implementing Decision of 30 March 2017
. The deadline for submitting reports covering years 2017-2018 expired on 30 September 2019.
All Member States have submitted their national data, though many not timely. The quality of the data continues to improve as regards Regulation (EC) No 561/2006. All Member States provided the requested breakdown of detailed statistics on controls of compliance carried out at the roadside and at the premises. However, some did not provide data sorted by the requested categories, e.g. data sorted by type of tachograph and type of offences.
As regards the information on the implementation of Directive 2002/15/EC, not all Member States have submitted the required information
and only some Member States provided statistical data on controls and their outcomes
. The lack of quantitative data from Member States makes an assessment difficult. Therefore, the Commission insists that extensive qualitative and quantitative data about the implementation of Directive 2002/15/EC and its enforcement is provided for the next reporting period in order to satisfy the requirements set out in Article 13 of Directive 2002/15/EC and Article 17 of Regulation (EC) No 561/2006.
I. Overview of enforcement activities for Directive 2006/22/EC and Regulation (EC) No 561/2006
1.Checks
Article 2 of Directive 2006/22/EC requires Member States to organise a system of appropriate and regular checks at the roadside and at the premises of undertakings that are subject to the provisions of Regulation (EC) No 561/2006. These checks should cover a large and representative sample of mobile workers, drivers, transport undertakings, and vehicles each year. This Article also establishes that the minimum number of checks shall cover at least 3% of days worked by drivers
of vehicles falling within the scope of Regulation (EC) No 561/2006.
The national data shows that the total number of working days
checked in the EU dropped by around 5%, meaning a decrease from around 131.7 million (in 2015-2016) to 125.7 million working days checked in the current reporting period. This decrease is however smaller compared to the drop by 13% between the previous reporting periods 2013-2014 and 2015-2016. Nevertheless, looking at the national figures the decrease of working days checked seems to result mainly from the lower number of working days checked reported by France
. Despite the decrease in numbers, France not only complies with the requirement, but is among the Member States checking most working days.
As illustrated in Figure 1 below, the EU average of working days checked is 5.4% (6.3% in 2015-2016), which is substantially higher than required under the Directive
.
Figure 1: Percentage of working days checked per Member State
Most of the Member States checked more working days than the minimum required by the Directive. Nevertheless, six Member States have not met the threshold of 3%, namely Denmark, the Netherlands, Finland, Ireland, Greece, and Lithuania. This is an increase compared to three Member States in 2015-2016. Denmark was close to the threshold (2.9%), and while Greece increased its enforcement efforts (improved from 0.1% in 2015-2016 to 0.7% in the current period), it remains well below the threshold. The Netherlands have a system of "monitoring based on trust", which indirectly covers more working days and would allow them to fulfil the minimum threshold for working days checked. Finland and Lithuania reported incomplete sets of data.
Article 2 of Directive 2006/22/EC also sets out the ratio of the working days to be checked at the roadside and at the premises, namely 30% and 50% respectively. The calculation of this proportion is based on the number of checks actually performed by enforcement authorities and not on the minimum number of working days to be checked. Looking at the Member States who have met the threshold, only eight Member States have the required balanced share between premises and roadside checks.
On average, 73% of the working days checked have been done at the roadside whereas 27% were checked through inspections at the premises. This is stable with a 1% increase in checks at the premises compared to the last report. In most Member States a large share of checks were performed at the roadside. Ireland and Finland reported a low number of checks at the roadside. Finland did not report data from the national police and their roadside checks, which may explain the low number of roadside checks and high proportion of checks at the premises. For details on the national share of roadside and premises checks see Figure 2.
Figure 2: Share of roadside and premises checks based on working days checked per Member State
1.1 Roadside checks
In total, 4,982,439 vehicles and 5,395,009 drivers were checked at the roadside throughout the EU. The difference between these two numbers may be explained by multi-manning driving, i.e. where there are at least two drivers in the vehicle to do the driving. Differences between the number of drivers and vehicles are mainly present in reports from Belgium, Germany, Latvia, Romania, Spain, Sweden, Lithuania and Poland.
Compared to the report for 2015-2016, the reported number of vehicles checked decreased by 39%, which is a decrease of 3,180,264 vehicles. This is mainly due to significant decreases in the numbers reported by Germany (-54% or 1,580,987) and Finland
(-99% or 1,081,158). This is similar to the increases reported by the same two Member States in 2015-2016.
The number of drivers checked decreased by 8% compared to 2015-2016, which is less significant than the 22% decrease in the last reporting period. This is mainly due to decreases reported in France (-19% or 157,780), Bulgaria (-48% or 142,147), Poland (-13% or 77,666), and accumulative effects of smaller decreases in several other Member States
.
Based on the country of registration of the vehicle, 58% of the checked vehicles were national vehicles, 33% were from other EU Member States and 9% were vehicles registered in non-EU countries
. Overall, most of the vehicles checked at the roadside (90% of the total) were carriers of goods, whereas only 10% were carriers of passengers.
In 2017-2018, 75% of the vehicles checked at the roadside were equipped with a digital tachograph. Hence, there are no grounds for raising the threshold of checks from 3% to 4%, as this should be done when 90% of checked vehicles are equipped with digital tachographs according to Article 2(3) of Directive 2006/22/EC.
1.2 Checks at the premises
In 2017-2018 period, 104,104 transport undertakings were checked, which is a 29% decrease compared to 146,967 undertakings checked in 2015-2016. Controllers at premises checked around 33.7 million working days, which represents a slight decrease of 3% compared to 34.8 million in the previous report. Overall, Member States’ control authorities checked at the premises the records of 641,033 drivers, which is 3% fewer compared to 5,846,011 in 2015-2016.
2.Offences
All Member States provided data on offences detected, but not all
provided details on the types of infringements. The total number of offences reported was around 3.41 million, which is stable compared to the last report (3.46 million).
The number of offences detected at the premises remained stable with 1% increase, while offences detected at the roadside decreased by 3%. The share of roadside offences detected remained stable at the level of 57% of total offences detected (58 % in the last report).
The share of types of infringements in the overall number of detected infringements remained similar as in the previous reporting period, with some slight changes. Figure 3 below illustrates the EU average share of infringements by the type of provision infringed, detected at both roadside and premises in 2017-2018. Once again, the number of offences regarding breaks slightly decreased from 21% to 17%, whereas offences of the driving time records rose from 24% to 27%. Offences for rest periods constitute 23% (24% in the last report), recording equipment
represent 12% (11% in the last report) and the lack/availability of records for other work constitute 6% (7% in the last report) of all detected infringements. These developments are presented in Figure 4 below.
The average offence rate, which is calculated based on 100 working days checked at premises and roadside checks, marginally increased from 2.6 in 2015-2016 to 2.7 in the current reporting period. The detection rate at premises remains twice as high as the detection rate at the roadside, which illustrates that checks at the premises are much more efficient than ad hoc roadside controls.
Figure 3: Categories of infringements at roadside and premises 2017-2018
Figure 4: Categories of infringements at roadside and premises over the last 10 years
2.1 Offences detected at the roadside
Around 1.94 million offences were detected at the roadside in 2017-2018, which is 3% less compared to around 2 million offences in 2015-2016. The EU average of offences detected at the roadside slightly decreased from 2.17 to 2.11 per 100 working days checked. On average, 55% of offences were found to be committed by domestic drivers, which corresponds to the 58% share of domestic vehicles among all vehicles stopped for controls.
2.2 Offences detected at the premises
Offences detected at the premises were around 1.46 million, which is 1% less than in the last reporting period. The average offence detection rate per 100 working days checked increased from 4.19 to 4.35, which represents an increase of 4% compared to 2015-2016. The increase in the offence rate (despite a decrease in offences detected) is explained by a decline in the number of working days checked.
The average offence rate detected at premises per undertaking decreased from 37 in 2015-2016 to 14 offences per undertaking, following a spike in the offence rate in the last report
. This is mainly explained by large decreases in offence detection rates in Latvia (from an offence rate per undertaking at 552.96 to 340.75).
2.3 Number of enforcement officers and equipment to analyse tachographs
In the current reporting period, 61,558 control officers were involved in checks throughout the EU, which confirms a stable situation in the number of officers.
21,786 control officers were trained to analyse the digital tachograph records (the 9% decrease from the last reporting period). The units of equipment provided to control officers to analyse the tachograph records also decreased by 5.5%. Member States did not indicate any reasons for this decrease.
3.Interpretation of Regulation (EC) No 561/2006 by the Court of Justice of the European Union
The Court of Justice of the European Union provided interpretation of Regulation (EC) No 561/2006 by means of the rulings in Case C-231/18 NK and Joined Cases C‑203/18 and C‑374/18. The cases related to interpretations of the exceptions provided for in Article 13(1) with reference to the terms “local markets” and “universal services”.
In Case C-231/18 NK, the Court ruled that the term ‘local markets’ in Article 13(1)(p) of Regulation (EC) No 561/2006 must be interpreted as referring neither to the transaction carried out between a livestock wholesaler and a farmer nor to the livestock wholesaler himself, so that the exception provided for in that provision cannot be extended to include vehicles transporting live animals directly from farms to local slaughterhouses.
In Joined Cases C-203/18 and C-374/18, the Court ruled that Article 13(1)(d) of Regulation (EC) No 561/2006 must be interpreted as meaning that the exception, which it lays down, covers only vehicles or combinations of vehicles that are used exclusively, during a particular transport operation, for the purpose of delivering items as part of the universal postal service.
4.Cooperation between Member States
According to Article 5 of Directive 2006/22/EC, Member States are obliged to undertake no less than six concerted roadside checks per year with at least one other Member State. Eight Member States
did not provide information on the exact number of concerted checks, while three did not report at all whether they have undertaken concerted checks
. Out of the 17 Member States that did provide adequate information on checks, 12 Member States
met the required number of concerted checks per year. Based on this, both Member States providing numbers and Member States who met the required number of concerted checks decreased compared to 2015-2016, where 24 Member States provided information, out of which 15 Member States met the threshold.
Cooperation between Member States concerns mostly neighbouring Member States. Also, as for the last reporting period, most of the Member States indicated that the cooperation took place within the framework of Euro Contrôle Route (ECR).
The cooperation between Member States based on concerted checks, joint training initiatives or exchanges of experience and information, plays a crucial role in achieving the objectives of the social legislation in the road transport sector i.e. improved working conditions, fair competition and improved road safety. The first Mobility Package, which was adopted in July 2020 and has entered into force at the time of writing this report, shall promote and reinforce the cooperation and mutual assistance between Member States and ensure more effective and consistent enforcement of the rules in force. In addition, the European Labour Authority (ELA) was established in 2019 with an overarching objective to ensure fair labour mobility in the internal market. One of ELA’s main tasks consists in supporting cooperation between Member States in the cross-border enforcement and facilitating joint inspections including in the area of EU social rules in the road transport sector.
II. Overview of the implementation of Directive 2002/15/EC
According to Article 13 of Directive 2002/15/EC, Member States are obliged to report on its implementation and indicate the views of employees and employers at national level every two years.
1.The scope of Directive 2002/15/EC
The Directive establishes rules governing, inter alia, adequate breaks during the working period, the maximum weekly working time 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 the working time of workers in all sectors.
2.Implementation aspects in Member States
Only Lithuania
indicated that national provisions implementing Directive 2002/15/EC were amended in 2017-2018. They amended the provisions governing working and rest time, including the terms used, e.g. maximum working time of mobile workers, rest periods, night work, the recording of working time and worker information.
Several Member States and social partners reported some implementation issues. Slovakian authorities and the Confederation of Trade Unions reported a lack of knowledge of the legislation on working time among drivers and operators. This opinion was shared by the Swedish authorities, which reported that insufficient knowledge was particularly prevalent among employers and self-employed.
Several authorities also reported a need for further clarification of some definitions in Directive 2002/15/EC. In Italy, social partners called for further clarification on the definitions of ‘working time’ and ‘time devoted to all road transport activities’ in the directive. The Portuguese authorities shared similar concerns, and in particular called for clarification of ‘periods of availability’. The German authorities reported difficulties assessing what counts as ‘working time’, specifically when controlling digital data.
A lack of human resources was also reported by Slovenian trade unions and by social partners in Germany. The Luxembourgish authorities as well as some German Ländern also reported that their activities were undermined by insufficient enforcement personnel. Finally, some national authorities reported difficulties in controlling the working time of drivers involved in different types of carriage activities
or conducting transport operations for several employers
.
Feedback from France and Sweden underlined the importance of increasing the frequency of checks monitoring of the implementation of Directive 2002/15/EC to uphold Union labour law standards.
Over the past three years, France re-organised its labour inspection system, creating sectoral transport inspection units staffed with officers trained to understand the specific nature of the activities in the road transport sector. These organisational changes led to both qualitative and quantitative improvement of the checks.
From the perspective of the Swedish authorities, it was observed that an increase in the number of inspections led to greater awareness of the rules. Sweden aims to improve communication with the industry and raise awareness of the negative impacts of night work in an overall effort to improve knowledge of the legislation on working time among employers and self-employed.
In spite of these shared observations, it remains difficult to identify trends and outstanding issues at the Union-level due to the significant number of incomplete submissions by Member States.
3.Interpretation of Directive 2002/15/EC
A few Member States reported judicial interpretation by national courts interpreting certain provisions of Directive 2002/15/EC in 2017-2018. Sweden indicated that they were waiting for a ruling in a case related to the possibility of carrying out a collective agreement derogating from parts of the national legal act transposing Directive 2002/15/EC. Estonia reported that legal disputes concerning the implementation of Directive 2002/15/EC had been settled by courts of first instance. In Slovenia, doubts regarding the hierarchy of legal acts on the issue of whether or not lunch breaks should be counted as working time were interpreted. Greece ruled that the provisions of Directive 2002/15/EC, which stipulate that break and rest periods are not considered working time, do not prevent the enactment of national regulations to better regulate these periods. Spain had a number of court cases related to collective agreements, holiday pay, travelling time, and carriage of passengers with one particular case regarding the event of a change in the working day and the impact on the structure of the driver’s wage in passenger transport.
4.Offences against working time rules
Several Member States
indicated that behaviour correction was made possible within a defined period to avoid an imposition of a penalty. The enforcement authorities will only proceed with their sanctions in cases where the deficiency failed to be addressed. In this regard, the Swedish industry reported that the absence of direct sanction was appreciated, as it gives the employers and self-employed a chance to implement new ways of working, using new technologies or changing procedures to improve legal compliance.
Only nine Member States provided quantitative data on the offences detected. This number is stable compared to the previous reporting period where eight Member States provided this information. Several of the reporting Member States were the same as in the current report. The insufficient number of contributions does not allow for EU-wide conclusions to be drawn.
Stakeholders' views on implementation of Directive 2002/15/EC
As required by Article 13 of Directive 2002/15/EC, twelve Member States
clearly indicated that two sides of industry had been consulted for the purpose of this reporting exercise. This number is slightly higher compared to the last report (10 Member States), but still shows that more than a half of Member States do not involve social partners in reporting on the implementation of the working time rules. Some Member States indicated that social partners were not consulted, as there was no new development since the last report.
In five out of the twelve Member States
, the views of social partners were not reflected in a separate section or paragraph, and in three of these, it was indicated that there was no distinct feedback from social partners
. The feedback was rather incorporated throughout the document, indistinctly from the views of national authorities or only mentioning that social partners had no comments. However, feedback from social partners was distinguished and highlighted in a separate section in the reports from seven Member States
.
Opinions from social partners cannot be further analysed, as they do not constitute a representative sample.
III. Conclusions
The general outcome of the analysis on the implementation and enforcement of the EU road transport social rules show that overall enforcement and compliance levels in 2017-2018 remain stable compared to 2015-2016.
While there is a continuous decrease in the number of working days checked, the number of offences detected remained stable with a 1% decrease. This may indicate greater efficiency in detecting infringements, but may also be explained by a slight increase in the ratio of checks performed at the premises compared to checks at the roadside. Indeed, the detection rate at the premises remains twice as high as the detection rate at the roadside indicating that checks at the premises are more efficient than roadside controls.
Infringement detection rates vary significantly throughout the EU, with a small group of seven Member States having reported the majority of the offences detected. It is worth emphasising that some Member States with very low offence detection rates are among those who have the highest percentage of working days checked. This fact, combined with the trend of decreasing number of working days checked and the limited enforcement capacities (human and financial resources, skills and control equipment) across the Member States, indicate that it is imperative to better target checks.
The access to data, such as risk rating, at the roadside has high importance notably to enable better target controls and to reduce unnecessary ‘clean’ checks, i.e. checks where no infringements are detected. The access to the risk rating data by roadside inspectors will be made obligatory in line with new requirements introduced by Mobility Package I.
As regards concerted and joint checks among Member States, it clearly appears that they contribute to knowledge-sharing, and to harmonised approach to the understanding and enforcement of EU rules in force. Therefore, the Commission encourages the Member States to further strengthen their efforts in improving cooperation, through joint inspections and concerted checks, as well as to benefit from the assistance offered by the European Labour Authority.
The shares of the different types of infringements remain similar to the last reporting period. At the premises, offences related to driving time records amount to almost half of all detected offences indicating difficulties with storing the relevant data appropriately by undertakings. Some Member States introduced higher penalty fees, while other adjusted their penalty levels after the entry into force of Commission Regulation (EU) 2016/403 on 1 January 2017 with regard to the classification of serious infringements. This may deter the increasing trend in offences related to driving time records, as missing driving time records is classified as a very serious infringement.
As regards the implementation of Directive 2002/15/EC, the lack of detailed quantitative and qualitative data in many national reports makes an in-depth assessment difficult. The Commission would like to stress the importance of this reporting exercise and remind that a legal action can be launched against Member States failing to comply with the requirement to submit the information as required by Article 17 of Regulation (EC) No 561/2006.
The Commission is confident that Mobility Package I, which was adopted at the time of writing this report, will allow enhanced checks efficiency and cooperation between Member States. An implementing act to be adopted by the Commission on a harmonised risk rating formula will allow enforcers to recognise quickly the profile of the company they intend to check. They will notably know whether a company has a low risk rating (due to low-level of law breaches) or a high risk rating (high-level of law breaches). In addition, a remote early detection of possible manipulation and misuse, shall give enforcers a tool to select which vehicles to control. All of this will decrease the number of unnecessary checks and save resources on both side of enforcers and drivers.
The Commission will continue monitoring of the implementation of social rules in road transport with the assistance of Member States and will remind Member States that Article 13(1) of Directive 2002/15/EC requires them to include the views of both sides of industry as part of this reporting exercise. Member States are encouraged to consider additional checking and controlling of the rules in force and notifying to the Commission the cases of diverging interpretations of the EU provisions.