Select Committee on European Scrutiny Eighteenth Report




Draft Regulation of the European Parliament and of the Council on the harmonisation of certain social legislation relating to road transport.

Legal base:Articles 71 EC; co-decision; qualified majority voting
Document originated:12 October 2001
Forwarded to the Council:15 October 2001
Deposited in Parliament:13 November 2001
Department:Transport, Local Government and the Regions
Basis of consideration:EM of 21 November 2001
Previous Committee Report:None
Discussed in Council:Not known
Committee's assessment:Legally and politically important
Committee's decision:Not cleared; further information requested; and relevant to the debate on European transport policy already recommended


  3.1  The current Regulation (3820/85) concerning the driving and rest times of drivers of heavy vehicles has been in force since 1985. The legislation was supposed 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." However, according to the Commission, there have been difficulties in interpreting and applying the regulation. The Commission has concluded on the basis of meetings and correspondence with experts and interested parties that there is not a common understanding of the existing provisions.

The document

  3.2  The draft Regulation seeks to clarify and simplify the legislation by repealing and replacing the current Regulation. Although the draft Regulation 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. 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) and passenger vehicles suitable for carrying more than nine persons (previously 17 persons by virtue of a national derogation);[4]

  • 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 (ECJ), and to variations in the way the Regulation is enforced in different countries in the EU;

  • 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

  3.3  The main proposed changes to daily and weekly rest include:

(1)  Driving time (Article 6) — a weekly maximum of 56 hours, reduced from 58 hours, which supplements the existing provision specifying 90 hours a fortnight;[5]

(2)  Breaks (Article 7) — 30 minutes after three hours driving can be taken as an alternative to the existing requirement of 45 minutes after 4½ hours, but other concessions have been revoked;[6]

(3)  Daily rest (Articles 8 and 9) — increased by one hour to 12 hours, but still reducible to nine hours three times a week,[7] whereas for multi­manned vehicles daily rest has been increased by one hour to nine hours in each period of 30 hours. Drivers can now only interrupt a full 12 hour daily rest period when they embark on or disembark from a train or ferry, when they are allowed a maximum interruption of one hour and no longer have to take two hours compensation for such an interruption;

(4)  Weekly rest (Articles 8 and 9) — will still be 45 hours, and will only be reducible to 24 hours when away from base and if taken between two 45-hour weekly rest periods, whereas drivers are currently able to reduce the weekly rest to 36 hours at base. Drivers of PSVs (public service vehicles) on non­regular journeys will no longer be able to postpone their weekly rest until the end of the 12 day period (the "12 day rule").

National exceptions

  3.4  The 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. The national exceptions will apply to private-hire vehicles, agricultural vehicles, vehicles below a certain weight or operating on small islands, local vehicles using gas or electricity, vehicles containing a driving instructor, and public vehicles used for flood and sewage work. The categories of vehicles no longer exempt are listed in the Explanatory Memorandum of 21 November 2001 from the Parliamentary Under-Secretary of State (Mr David Jamieson). These include:

"breakdown vehicles and milk collection vehicles operating beyond a 50 km radius; vehicles over 7.5 tonnes used for the non­commercial carriage of goods; vehicles not 'owned or hired­in without a driver' by the armed services (etc); specialised medical vehicles not 'owned or hired­in without a driver by the State'; non-specialised vehicles transporting circus and fun­fair equipment; [and] vehicles used in connection with gas, electricity, telegraph and telephone services, radio and television broadcasting, and the carriage of postal articles; passenger vehicles suitable for carrying between 10 and 17 people."


  3.5  New enforcement measures include:

  • placing responsibility for compliance on operators 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 operator's benefit, including offences committed abroad, unless a driver acts outside the operator's 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;

  • "impounding" vehicles when serious offences relating to drivers' hours are detected (though such offences are not defined);

  • using tachographs where fitted to PSV vehicles operating on regular national services, as opposed to the existing requirement of duty rosters and timetables;[8]

  • including information about tachograph enforcement by Member States in the biennial enforcement return to the Commission;

  • exchanging information, including intelligence, between Member States;

  • designating the all­Member State tachograph technical committee (CATP) to assist the Commission in overseeing the implementation of this Regulation.

  3.6  In its Regulatory Impact Assessment, the Department estimates that the current combined goods vehicle and passenger vehicle fleet falling within the scope of the EU drivers' hours rules is approximately 430,000 vehicles and that this will increase by some 40,000 extra vehicles as a result of the proposed changes.

The Government's view

  3.7  The Minister tells us that he 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 welcomes the fact that the main elements of the existing legislation 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." He adds:

"Most of these operations will already be subject to the separate UK drivers' hours legislation and bringing them within the scope of this new Regulation is not inconsistent with our earlier decision (as reported in the Transport White Paper) to consult on legislative changes to repeal the UK legislation in favour of the EU Regulation.

"But it is important to note that the scope of the draft Directive on Working Time in Road Transport matches the scope of this Regulation. So, by widening the scope of this Regulation, the operations concerned would also be brought within the scope of the working time legislation, which is likely to be agreed early next year. However, whether the working time legislation will apply to the private (i.e. non­commercial) driving of vehicles or those minibuses suitable for carrying between 10­17 persons being driven by 'volunteer' drivers on behalf of charities, schools, associations etc, is something that will need to be considered as part of the implementation process of the yet to be agreed Directive on Working Time in Road Transport.

"By attempting to strike a balance between flexibility and effective enforcement, certain provisions widely used by industry in the past have been lost. Most notable is the split daily rest provision, which allows a driver to take 12 hours rest in two or three separate periods, the last of which must be at least 8 consecutive hours — thus allowing a 16 hour duty period (or spreadover). This is common in the haulage industry where drivers can spend a considerable amount of time waiting for their vehicle to be loaded/unloaded at depots, etc, and also in the coach industry where it is heavily relied upon for providing commuter services. On the other hand, this provision is virtually unenforceable because invariably checks can only be made on the 8 hour period of rest. It would also be difficult to compute for the purposes of the digital tachograph.

"Another lost flexibility concerns weekly rest. In the existing legislation, drivers are able to take reduced rest of 24 hours away from base and 36 hours at base — and both must be compensated for. The proposed changes would mean that drivers would no longer be able to take reduced rest back at base, and only reduce down to 24 hours if a normal rest period of 45 hours is taken the following week. In other words, a driver cannot take two reduced rest periods in a row. The Commission takes the view that this would help to tighten up the rest requirements and make them easier to compute. But a problem could arise because there is no requirement for location data to be recorded by digital tachographs. So there would be no way of knowing whether the driver was away from base when taking his rest and the taking of reduced rest of 24 hours could become the norm.

"Other specific concerns for the bus and coach industry are likely to centre around the removal of the alternative break requirement which allows certain drivers on regular journeys to take a break of 30 minutes after 4 hours of driving, and the revocation of the 12 day rule which allows drivers on non­regular journeys to postpone their weekly rest until the end of the twelfth day. The loss of the former is likely to be offset by the proposal to allow all goods and passenger drivers to take a 30 minute break after just 3 hours driving as an alternative to the existing 45 minute break requirement. The loss of the latter could be more contentious as the industry may argue that this would jeopardise 7 day tours. But it will be necessary to consider this in the context of improvements to road safety and improved working conditions.

"Of the new enforcement measures being proposed, the provision of extra­territorial jurisdiction and operator liability may be controversial. Assuming extra­territorial jurisdiction for drivers' hours offences, which is already implied in the existing legislation, would rectify a major lacuna whereby drivers and operators cannot be prosecuted for offences committed abroad, bearing in mind that most enforcement is done retrospectively at operators' premises. The requirement that operators should be liable for drivers' hours infringements committed by their drivers reflects the existing position in the UK regarding tachograph offences and is similar to a proposal on which the Government is already committed to consult industry (as confirmed by the Government's response to the Environment, Transport and Regional Affairs Committee's (ETRAC) report on the road haulage industry)."


  3.8  We note the Commission's intention to strike a balance between, on the one hand, the flexibility in driving times, rest periods and breaks provided in the existing legislation and, on the other, effective enforcement. We also note the Minister's view that the proposal does not seek to make any material change to the existing driving times limits or rest requirements, except to remove ambiguities and obstacles which make enforcement difficult and which would obstruct the introduction of digital tachographs.

  3.9  The Commission proposes to abolish existing derogations for transport activities carried out by public utilities, such as electricity and gas companies, which seems to us a sensible simplification and reflects the fact that these services are increasingly performed by private sector organisations. However, as the Minister points out, abolition of some other provisions widely used by industry, such as the so-called "split daily rest period", may cause problems, especially as the new provision is "virtually unenforceable" because checks can only be made on the break lasting eight consecutive hours. The Minister also comments that the proposal in the draft Regulation to change weekly rest periods when away from base also seems unenforceable without recourse to data on location. The inclusion of such virtually unenforceable provisions must damage the prospect of establishing a common understanding of the new legislation.

  3.10  As regards extra-territorial jurisdiction, we note the Minister's view that the proposal makes explicit an implied requirement under the current legislation.

  3.11  There are reports that the Commission's proposals have been welcomed by the employers' organisation and the International Road Transport Union (IRU). However, the European Transport Workers' Federation (ETF) has criticised the proposal to abolish compensatory leave and the fact that under the new legislation it will still be possible for its members to drive for up to 56 hours a week. The ETF also criticises the exclusion of vehicles below 3.5 tonnes, which it says account for a growing amount of freight.

  3.12  The Department will be consulting widely on the proposal. We have decided not to clear the document until we have had an opportunity to consider the results of the consultation. Meanwhile, we consider it relevant to the forthcoming debate on European transport policy. [9]

4   As in the case of the UK. Existing provisions on minimum ages for drivers have also been deleted because these are now included in the separate proposal for a Directive on the training of drivers (COM (2001) 56 Final). Back

5   Also includes any time spent driving an out-of-scope vehicle on a road on the same day. For those already covered by the existing Regulation, the basic rules on daily driving times remain unchanged, namely: a daily maximum of nine hours, which may be extended to at most 10 hours not more than twice during the flexible week. Back

6   The concession allowing certain coach drivers to take a break of 30 minutes after four hours driving has been revoked, as has the provision whereby the 45 minute break could be split into three periods of not less than 15 minutes. Back

7   The split daily rest provision, which allows a driver to take 12 hours rest in two or three separate periods, the last of which must be at least eight consecutive hours, has been revoked. According to the Commission, Article 7 "seeks to address the anomaly in the current text, whereby a driver may legally drive for a possible nine hours whilst only having had a break of fifteen minutes. Under the current proposal the new Article 7 means that a driver can drive for a maximum of seven and a half hours interrupted by a break of at least 30 minutes."  Back

8   Tachographs are to be fitted to all such vehicles by December 2006. Back

9  (22660) 11932/01, (22776) 12597/01; see HC 152-xv (2001-02), paragraph 2 (30 January 2002). Back

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