Explanatory Memorandum to COM(2000)84 - Implementation in 1995-96 of Regulation (EEC) 3820/85 on the harmonisation of certain social legislation relating to road transport

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dossier COM(2000)84 - Implementation in 1995-96 of Regulation (EEC) 3820/85 on the harmonisation of certain social legislation relating to road ...
source COM(2000)84 EN
date 15-02-2000
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52000DC0084

19th Report from the Commission on the implementation in 1995-96 of Regulation (EEC) 3820/85 on the harmonisation of certain social legislation relating to road transport /* COM/2000/0084 final */


Contents

1.

19TH REPORT FROM THE COMMISSION on the implementation in 1995-96 of Regulation (EEC) 3820/85 on the harmonisation of certain social legislation relating to road transport



2.

19TH REPORT FROM THE COMMISSION


on the implementation in 1995-96 of Regulation (EEC) 3820/85 on the harmonisation of certain social legislation relating to road transport

Contents

Executive Summary

3.

1. Introduction


4.

2. National initiatives


5.

2.1 Regulatory measures


6.

2.2 Administrative measures


7.

3. Penalties


8.

3.1 Scales


9.

3.2 Changes


10.

4. Relations and co-operation between the Member States


11.

4.1 Concerted checks


12.

4.2 Exchanges of information


13.

5. Summary Tables


14.

5.1 Checks: summary


15.

5.2 Offences: summary


16.

6. Conclusion and comments


17.

6.1 Conclusions and comments by Member States


18.

6.2 Conclusions and comments by the Commission


Annex A Table of Penalties

Annex B Summary of Data received from the Member States

19.

1. Reference Period


20.

2. Calculation of minimum checks to be carried out


21.

3. Checks


22.

3.1 Number of checks at the roadside


23.

3.2 Number of drivers checked at premises of undertaking


24.

3.3 Number of working days checked at the roadside


25.

3.4 Number of working days checked at the premises of the undertaking


26.

4. Offences: number of offences recorded


27.

4.1 Article 6 of Regulation (EEC) No 3820/85: driving period


28.

4.2 Article 7 of Regulation (EEC) No 3820/85: breaks


29.

4.3 Article 8 of Regulation (EEC) No 3820/85: rest periods


30.

4.4 Article 14 of Regulation (EEC) No 3820/85: service timetable and duty


roster


EXECUTIVE SUMMARY

This Report sets out trends and statistics covering the Member States' inspection and enforcement activities during the period 1995-96 concerning the driving time, breaks and rest period provisions of Regulation (EEC) No. 3820/85. The Report is based on statistics provided by the Member States and includes their views on implementation.

All Member States submitted data to the Commission for the current period. Some only did so following the threat of infringement proceedings. Austria and Italy, which did not make a return for the last report, provided data on this occasion, although Austria only did so for 1996. Unfortunately the Greek statistics were not forwarded in a suitable format for this report and could not be included. Generally there was some progress in providing data in the standard form, nevertheless some Member States still only give total figures, and the returns made are still not uniform. This has once again delayed the production of the Report, and has hindered a comprehensive and effective comparison.

The statistics indicate that the overall number of offences detected has increased again, but the emphasis has changed. While there continues to be a downward trend in terms of offences concerning rest periods from 41% in 1991-92 to 28% in 1995-96, there has been a corresponding rise in the overall percentage of offences relating to breaks from 20% in 1991-92 to 29% in 1995-96 with a similar rise more recently in terms of driving time offences and to a lesser extent concerning service timetable and duty rosters. Offences against driving time rules now represent the highest number of infringements. The statistics seem to reflect the increasing pressure on drivers to drive longer than permitted and to ignore the minimum breaks provided in the Regulation.

The trend in the number of offences detected differs from country to country. In most of the Member States the number of offences detected has increased (in Denmark, Finland, Germany, Luxembourg, Portugal, Spain, Sweden and the United Kingdom), while in some it has decreased (Belgium, France, Ireland, Netherlands). Germany continues to report by far the highest number of offences detected (80% of all detected offences), and also has the highest ratio of the total number of offences detected to the total number of working days checked, indicating a well-targeted enforcement practice.

The number of enforcement checks also differs this time from country to country. The number of checks rose again in the majority of Member States; in others, such as Germany, Luxembourg and Ireland it decreased - as these latter Member States already easily surpass the minimum checking requirement, this reduction in checks does not run counter to their current Community obligations. Indeed, from the statistics provided, all Member States except Portugal now meet the basic standard of 1%, with Denmark, Germany and Spain continuing to maintain an enforcement rate of over 2%.

Member States have taken various initiatives. France has revised its penalties upwards quite significantly. Immobilisation as a penalty is being used increasingly both in France and Germany. The Benelux enforcement agencies have taken several initiatives to promote a greater exchange of information and achieve a common understanding of enforcement practice.

Working time legislation, when adopted, will provide a complementary element to the Regulation. Enforcement of these provisions will lead to the need for a clear understanding of their interpretation by the enforcement authorities, and the Commission will seek to promote a common interpretation throughout Member States.

The advent of the digital tachograph also draws nearer. This will provide a basis for more comprehensive enforcement action. The Commission has now received responses from the majority of Member States on the issue of uniform and effective enforcement of the Regulation and intends to draw up a report highlighting the positive progress achieved in some quarters and the evident disparities between Member States, for example in terms of penalties imposed. Proposals for improvements may be put forward.

31.

In summary, the Commission intends to


-Take steps to encourage Member States to improve data provision; and

-Evaluate the effectiveness and uniformity of enforcement practice in a report to be accompanied by proposals as appropriate.

32.

1. Introduction


This report, which covers the period 1995-96, is the third in the new series of Commission reports which exclusively covers Regulation (EEC) No 3820/85 i. The information provided has been supplied by the Member States on the standard form, introduced by the Decision of 22 February 1993 i.

While most Member States have submitted their data in a format close to the standard form, their returns are still not all uniform and some of the data submitted was fragmentary, incomplete or, in the case of Greece, for different reference periods. Delays in returns were reduced but only as a result of the threat of infringement proceedings by the Commission.

However, due to the standard form and the fact that this report is presented in the same format as the last one, it is easier to compare the statistics with those of the last period. The report also sets out any initiatives communicated by Member States and includes the latest developments at Community level.

33.

2. National initiatives


34.

2.1. Regulatory measures


Austria indicated that it had introduced Regulation (EEC) 3820/85 by means of § 102 11a-11d Kraftfahrgesetz (law concerning vehicles), the Arbeitszeitgesetz (law on working time) and the Arbeitsruhegesetz (law on rest periods).

In Germany the 'Fahrpersonalgesetz' (law concerning driving personnel) was changed in August 1997 - the regulations relating to fines were transferred to the 'Fahrpersonalverordnung' (regulation about driving personnel). The regulation, which also sets out national exemptions under Article 13 of Regulation (EEC) No. 3820/85, has been changed following the ratification of the second and third amendments of the AETR agreement (tachographs instead of a logbook). The provisions of the Regulation are now also applied to the driving time and rest period records of vehicles with the maximum authorised weight of between 2.8 and 3.5 tonnes and are enforced in a similar way.

35.

2.2. Administrative Measures


In Austria, the Labour Inspectorate has brought a total of 891 criminal charges concerning social regulation in road traffic. Penalties levied total EUR 519,335.

In Belgium 8 new inspectors have been engaged to reinforce the enforcement effort.

In Finland the government proposes to include the Customs and Border Guard Service as an additional enforcement body.

In France in 1995 and 1996, 158 cases were presented to the commissions for administrative sanctions for serious or repeated transport infringements, including working conditions and road safety regulations. The sanctions comprised the temporary or permanent revocation of some or all of the transport authorisations. Thus, 385 Community licences and 322 transport authorisations have been permanently revoked and 229 copies of Community licences and 243 transport authorisations have been temporarily revoked.

The French Prime Minster signed an inter-ministerial circular on 26 September 1996 aimed at reinforcing the co-ordination and the targeting of checks by enforcement authorities. The number of enforcement officers was increased by 44, tailored and continuous training for enforcement staff introduced, computers upgraded and new traffic measures put in place.

In Germany, fines with a caution were imposed on 9,252 passenger carriers and 198,677 road hauliers. 6,517 passenger carriers and 176,131 road hauliers were presented with penalty notices. 2,054 passenger carriers and 106,794 road hauliers were banned from continuing their journey. From this it is evident that the number of sanctions involving immobilisation has increased considerably.

The Dutch government hosted an informal international expert meeting at the Hague on 16 and 17 September 1996 to examine the way in which the European Regulations concerning driving times and rest periods for professional drivers are implemented and how infringements are punished in the different Member States. The seminar proved to be a valuable forum for exchanges of views.

In the United Kingdom, there continued to be a heavy emphasis in 1995 and 1996 on enforcement targeted at particular locations and suspected drivers and operators, in addition to routine checks for drivers' hours compliance. Much of this involved intelligence gathered from 'silent checks', where a vehicle's use and location is recorded without the driver's knowledge and followed by a thorough check of drivers' charts to see whether all the information has been recorded. This helps to detect systematic abuse of the Regulation's provisions. More statistics are being gathered relating to the enforcement activities of the police which will help present a fuller picture of the level of enforcement within the United Kingdom.

36.

3. Penalties


37.

3.1. Scales


Five Member States (Austria, Denmark, Finland, Ireland and the United Kingdom) transmitted information about the scale of penalties imposed for infringements of the Regulation to the Commission. A wide range of fines between Member States is still apparent. (See Annex A).

In Austria fines vary between EUR 37 and EUR 2204.

In Denmark a fine of EUR 53 is imposed on the driver and EUR 132 on the haulage operator for every offence against the provisions of Council Regulation (EEC) No. 3820/85 and 3821/85. However a fine can be imposed which also reflects the type and gravity of the offence.

In Finland, the sanctions are directed at the driver or employer depending on the offence in question. Offences are punishable by a daily fine, which corresponds to 33.3% of a person's daily income, with social exceptions. The sanction imposed varies with the offence. Punishment for an offence against regulations on driving and rest periods varies from 6 to 12 daily fines. For example, neglecting the use of the record sheet brings 8 daily fines, neglecting the regulations on the use of the record sheets 6 daily fines, and so on.

In Ireland, the maximum fine is EUR 1266 and/or 6 month's imprisonment.

In the United Kingdom, the maximum fines that could have been imposed in 1995/96 for both drivers and those who cause or permit drivers' hours and tachograph offences ranged from EUR 1299 to EUR 6494. The maximum EUR 6494 fine in Northern Ireland came into effect on 3 June 1996. In an addition to a fine, the offences of falsifying a chart and altering or forging a seal on a tachograph carry a penalty of up to two years imprisonment.

38.

1.2. Changes


In France, the regulation concerning major offences has been integrated into legislation 'loi no. 95-96' from the 1 February 1995. New penalties have been created; others have been made more stringent in this law: - offences concerning tachographs attract a more severe penalty with a maximum fine of EUR 30,489 and one year imprisonment upon conviction. These penalties also apply to offences involving manipulation of speed-limiters.

Decree no. 95-602 of 5 May 1995 also raises the penalties where driving time and rest period rules have been seriously infringed as well as for some offences regarding the use of record sheets. A fine of approximately EUR 1517, instead of EUR 758, now is meted out for these offences. Decree no.95-601 of 5 May 1995 raises the penalty for refusing to immobilise vehicles upon request. The current penalty system will be extended with the creation of a sanction of administrative immobilisation of vehicles.

In Northern Ireland the levels of fines in operation in 1995 and 1996 have been increased and are contained in the Road Traffic (Northern Ireland) Order 1981 and the Passenger and Goods Vehicles (Recording Equipment) Regulations (Northern Ireland) Order 1981 as amended on 3 June 1996 by the European Communities Road Traffic and Vehicles - Passenger and Goods Vehicles - (Recording Equipment) Regulations (Northern Ireland) 1996.

39.

4. Relations and co-operation between Member States


Although this heading is not included explicitly in the standard form, a number of Member States made comments on checks and exchanges of information.

40.

4.1. Concerted checks


Directive 88/599/EEC of 23 November 1988 calls for an exchange of information and mutual assistance on the part of the Member State as regards the implementation of the enforcement measures.

Denmark registered 10 co-ordinated checks with other Member States: 7 with Germany and 3 with Sweden. The checks have been conducted on vehicles chosen at random crossing into Denmark at the land frontier at Padborg and vehicles chosen at random arriving from Denmark in the state ports at Helsingør. Each check was carried out over a period of 8 hours. 1170 vehicles were checked, 222 offences were recorded, of which 29 constituted offences against Regulation (EEC) 3820/85. Sweden also confirmed that co-ordinated checks were carried out with its Scandinavian neighbours.

Luxembourg mentioned that concerted checks have been undertaken regularly with the neighbouring Member States, for instance with the Benelux Member States, Germany, France and United Kingdom. The different services of the Member States agree upon a common date and the organisation of the control. These operations are made in principal on one day between 3 a.m. and 3. p.m..

In Northern Ireland, examiners carried out three joint enforcement operations with officials from the Republic of Ireland.

41.

4.2. Exchanges of information


Denmark stated that it exchanged information with 11 other Member States. Sweden noted that it had exchanged information with all its neighbouring Scandinavian countries. Luxembourg mentioned that meetings are organised quarterly between the Benelux States where information was exchanged and common positions developed. Belgium added that several initiatives have been taken in the framework of Benelux and also with France and Germany to develop a better exchange of information on issues such as major offences committed by their own carriers in other Member States. Currently they were jointly considering methods for a uniform exchange of information and appropriate sanctions for such companies. Belgium requested that those initiatives should be co-ordinated by the European Union.


42.

5. Summary tables


43.

5.1. Checks: summary


Number of days actually checked as a proportion of the minimum number of working days to be checked


>TABLE POSITION>


44.

Note


From 1 January 1996 to 31 December 1996

In the Table 5.1 above, as in Tables 3.1 to 3.4 in Annex B, figures relating to checks carried out by the gendarmerie, the Ministry of Finance (Customs) and the Ministry of Employment and Labour are absent.

Statistics for checks not disaggregated between nationals/ non-nationals but included in overall total (d)

In the Table 5.1 above, as in Tables 3.1 to 3.4 in Annex B, statistics on checks carried out by the Labour Inspectorate and gendarmerie were not submitted. They therefore represent only a partial picture of enforcement activity

This figure does not include any enforcement activities carried out by the police.

* If the individual country ratio between enforcement checks and offences detected is applied to the unattributed offences submitted by Belgium and the United Kingdom (see Table 5.2), this would imply that the overall number of working days checked could total 3,661,350 and 12,876,954 respectively, and would consequently mean that the checking percentage should be adjusted to 542% for Belgium and 641% for the United Kingdom.


45.

5.2. Offences: summary


Number of offences recorded: Articles 6,7,8 and 14 of Regulation (EEC) 3820/85 Overview by Member State


>TABLE POSITION>


46.

Note


France does not distinguish between nationals and non-nationals, but between residents and non-residents. No detailed figures about passenger and good offences.

* The following figures on offences detected have not been incorporated into the Table above, nor in Tables 4.1 - 4.4 in Annex B, as they were not suitably disaggregated:

47.

Total


Gendarmerie: 22,260

Ministry of Finance 3,988

Ministry of Employment and Labour: 260

Total 26,508

** The following figure on offences detected has not been included in the Table above, nor in tables 4.1 - 4.4 in Annex B as it was not suitably disaggregated:- UK police forces: 35,241 (1995-96)


48.

Number of offences recorded: Articles 6, 7, 8 and 14 of Regulation (EEC) 3820/85


Overview by category of offence (includes passengers and goods; nationals, EEC and third countries)


>TABLE POSITION>


***excludes undisaggregated figures (Austria - 21,239; Finland - 1,515)

49.

6. Conclusion and Comments


50.

6.1. Conclusion and comments by the Member States


Belgium concluded from its statistics that driving time and rest period offences remain the most important issue for drivers. About 40% of road transport offences detected concern violations of the provisions of Regulations (EEC) no. 3820/85 and 3821/85. Data for the first semester of 1997 even indicates a further deterioration to 42%. For this reason Belgium is considering raising its level of fines. A draft proposal for a new law has been circulated to all concerned and, despite delays, it is hoped to finalise it soon. Belgium pointed out that the number of working days checked has increased, because 8 new inspectors have been employed.

France reported that the number of checks at the roadside and at the premises of undertakings and the number of vehicles in 1996 had been drawn up using two different computer systems and the data used did not cover the same statistical fields. This has led to an underestimation of the results for 1996. While the number of vehicles checked at the roadside decreased in 1996 compared to 1995, the number of working days checked at the roadside and on the premises have both increased by 2%. The number of working days checked, as a proportion of the minimum number of days to be checked would as a consequence increase to 163%. In both 1995 and 1996, 75% of the offences detected on the road contravened Regulation (EEC) 3820/85.

Finland advised that checks carried out had made no distinction between goods and passenger transport. However, these checks have mainly involved goods vehicle traffic. The number of passenger vehicles checked represented about 5% of the total. According to their estimates, for every vehicle checked at the roadside three record sheets have been examined; in checks made on the premises, for every undertaking 10 tachograph discs per driver were examined. Drivers' nationalities were not recorded in the course of the checks, but this will be changed for the 1998 statistics. Statistics from the Mobile Police indicate that there were 670 offences leading to prosecution in 1995 and 845 in 1996. Over and above these offences, in both years there were minor offences which resulted in a caution but which were not registered. Such offences included, for example, the misuse of or omission to use the period recording switch. In summary, during the years under review, the number of inspections clearly exceeded the minimum level required by Directive 88/599//EEC and the gathering of information has also become more effective.

Germany pointed out that it has clearly surpassed the 1% minimum standard for checks. It explained that the relatively high number of checks of non-national drivers was due to the fact that Germany has probably one of the highest rates of transit in the EU. The number of vehicles being subject to the Regulation (EEC) No. 3820/85 has slightly decreased in 1995/96 compared to 1993/94. This is reflected in the number of checks at the roadside and in the number of working days checked at the roadside. The number of drivers checked at road hauliers' premises has slightly increased, but as regards the premises of passenger transport undertakings and of own account transport it has decreased. There is a marked increase in the number of offences detected in relation to driving times and breaks for goods transport but not as regards passenger transport. The number of immobilisations due to serious offences has clearly risen. Germany also advocates a re-working of the standard data form for the Commission biennial report in order to include more details in future reports such as offences against Regulation (EEC) 3821/85, and information exchanges collaboration between Member States.

The Netherlands pointed out that its enforcement policy emphasises prevention rather than punitive measures. The enforcement authorities mount a visible presence rather than issue 'on the spot' fines. In the period under review the RVI (Netherlands National Transport Inspectorate) continued to develop preventative methods to promote compliance with the Regulation. The objective is to reach the best possible agreement with transport entrepreneurs on how they make provision within their companies for compliance. Failure to act in accordance with these agreements is a criminal offence. Within this framework, every undertaking is inspected at least once within an agreed period. If in the course of such checks serious violations are recorded, penalties are imposed immediately. If during roadside checks, violations are detected for which an official report has to be drawn up, immediate enforcement action is taken. Data based on such violations is subsequently used to carry out targeted checks on transport companies.

Portugal expressed the hope that it would be in a position to reach the minimum level of the checks prescribed by the Directive 88/99/CEE for the period 1999-2000, leaving aside checks carried out by the Labour Inspectorate and Gendarmerie.

The United Kingdom indicated that this was the first time that data on checks carried out by the Police service in the UK has been available for inclusion in its return, as previously any Police data had been difficult to obtain. Nevertheless, the police data represents the true scale of their enforcement of drivers' hours compliance in the UK as a number of individual forces do not as yet record data - or at least if they do, it is not in a form which is compatible with the standard report form. The police statistics are only noted in an annex to the UK submission that could not be taken into account in the standard form. The true extent of drivers' hours enforcement is consequently underestimated.

None of the other Member States made any comments under this heading.

51.

6.2. Conclusions and comments by the Commission


Regulation (EEC) No. 3820/85 continues to provide a common Community standard for setting maximum driving times and rest periods for road transport operators. Its implementation within the Member States can play a vital role in enhancing road safety, transport efficiency and fair competition within the Union. However the Commission is aware that Member States have differing perceptions about how to implement this legislation. Checks are carried out with varying degrees of frequency and intensity, often by differing authorities acting under separate national rules. Infringements are penalised with differing degrees of severity. In some Member States several enforcement authorities may provide partial data for the Commission's report, instead of all the information being co-ordinated and compiled in the standard form, which renders an accurate comparison more difficult.

Moreover, the Commission recognises the continuing potential for circumvention of the current recording equipment and the need for greater co-operation between Member States to ensure a co-ordinated approach to enforcement. For that reason it convened a two-day meeting of national experts in October 1995 to facilitate an exchange of views on aspects of the interpretation and enforcement of the Regulation which proved to be highly informative. The Karolus programme, which facilitates exchanges between officials in Member States, was also used to promote further understanding between national enforcement authorities.

Belgium and Luxembourg continue to detect many more offences among non-nationals than among nationals. However an equal number of non-nationals and nationals are checked so there appears to be no discrimination between nationals and non-nationals in enforcement practice. The Commission will continue to monitor the situation in all Member States.

52.

6.2.1. Lack of data remains a problem


A lack of timely, detailed and sufficiently comprehensive data from Member States continues to hinder an overall comparison. The reasons vary from country to country. For this report Greece was the only Member State that did not make a return in the given format. Its statistics also comprise two year totals for interim years which cannot be broken down and then reassembled for the two consecutive years covered by the report. The Commission has reluctantly had to open infringement proceedings against Greece to resolve this issue. Austria and Italy, which did not provide any data last time, made a return for this period, although the return for Austria covered only 1996. The two other latest Community entrants, Finland and Sweden, which provided incomplete data last time, have forwarded a more comprehensive return for the current period 1995-1996.

Some Member States continue to provide total numbers only - returns are still not in a uniform format. As regards offences under Articles 6, 7, 8 and 14 of Regulation (EEC) 3820/85, Finland and Austria have not yet managed to provide detailed data, instead forwarding a total number for each type of offence that could only be included in the general statistics. In addition, France does not distinguish between nationals and non-nationals, but between residents and non-residents, which may nuance any comparisons.

The Belgian and Portuguese competent authorities continue to provide a piece-meal return which means a smaller comprehensive figure in terms of checks and offences detected being ascribed to them and in so doing probably masks the overall level of enforcement activity carried out. The United Kingdom has also indicated that its police forces undertake significant enforcement work and hopes to be in a position to forward full statistics on these activities in the near future.

53.

6.2.2. The minimum standard of checks has been reached by most of the Member States


The overall number of enforcement checks continues to rise within the EU. Within this overall picture there are differences between Member States. Some, such as France, Portugal and Spain, recorded a further increase, while for others enforcement levels stayed largely the same, while for a few, such as Germany and Luxembourg, there was a decrease in activity, although enforcement operations continued to be significantly above the minimum number required.

In general, data from Portugal indicates an upward trend. The result is that, on the summary statistic of the number of working days checked as a proportion of the minimum number of days to be checked, Portugal increased the number of checks.

Ireland has a much higher number of vehicles being subject to Regulation. Thus, the total number of days worked has risen sharply and consequently the minimum number of checks required has also risen, but enforcement has not kept pace with this development. Therefore, the number of working days checked as a proportion of the minimum number of days to be checked turned out to be 1.30 %, as opposed to 3.86 % in the 1993-1994 report.

In general, most Member States easily surpassed the basic standard of 1 %. Denmark, Germany and Spain still attain an enforcement rate of over 2%, as in 1993-1994, with Germany maintaining the highest Union percentage of checks with over 4%.

It is also significant to note that the new Member States were able to raise the level of checks from under 1% in 1993-1994 to over 1% now (Finland from .44% to 1.78%; Sweden from .13% to 1.02%; Austria to 1.28%). And Belgium despite only forwarding partial data also increased its checking rate from 0.66% to 1.20%.

Consequently, all Member States bar Portugal increased their percentage of checks carried out over the basic standard of 1%. Despite a request to include the statistics from all the Portuguese enforcement bodies in their return, this was not forthcoming. The lack of a single body to co-ordinate all of Portugal's national statistics may mask an underlying compliance with the Directive's minimum requirements. Indeed, Portugal has indicated its intention to meet the minimum enforcement rate of 1% by 1999, but this may only be based on the statistics of one of the enforcement bodies.

6.2.3. The number of offences against rest periods decreased, while all the others increased.

There has been a rise in the number of offences against Article 6 (Driving periods), Article 7 (breaks) and Article 14 (Service timetable and duty roster). Driving time offences have remained a constant and significant proportion (38%) of total offences detected and have even increased (34% in 1993-1994). For this period, the number of driving time offences surpasses those concerning rest periods and now represents the category with the highest number of infringements. Offences detected against breaks have continued to rise and now form 29% of the total and offences relating to the service timetable and duty roster return to their former percentage of 4% of the total offences detected.

It should be recognised that more Member States have provided data on these offences. However it still is significant that the number of offences detected relating to Article 8 (rest periods) has decreased from 39% in 1993-1994 to 29% for 1995-1996. This is not due to a general decline in the number of offences detected in Member States - some countries have even recorded increases like Denmark and Portugal - but reflects developments in the sector. The figures seem to indicate a greater pressure in the road transport sector for drivers to drive longer than permitted, despite the flexibility already provided in the Regulation.

54.

6.2.4. In most of the Member States the number of offences detected has increased


In most Member States the total number of offences detected has increased, as in Denmark, Finland, Germany, Luxembourg, Portugal, Spain, Sweden and in the United Kingdom. In others it has decreased (Belgium, France, Ireland, Netherlands).

This result can be due to different factors. Firstly it may reflect a real increase in the number of offences committed; secondly it may also indicate a more targeted effort on the part of the enforcement authorities; finally it may in some instances simply indicate a better collection and collation of statistics. Nonetheless it paints a disturbing picture of an increasing disrespect for the rules and the need for a more significant enforcement effort.

An examination of the figures submitted by the Member States reveals the following: amongst the Member States where offences increased, in Germany and Luxembourg the total number of days worked did not increase. Fewer checks were carried out but more offences were detected. Thus, in the absence of a reported major shift in enforcement targeting strategy, the rise in the number of offences detected here appears to reflect primarily an overall increase in offence rates. In returns from six Member States (Denmark, Finland, Portugal, Spain, Sweden and the United Kingdom) the total number of days worked increased. Bar Finland, these Member States also undertook more checks and uncovered a much larger number of offences. This increase reflects not only more intensive enforcement efforts, but also a general rising trend in offences rates. In Finland, by contrast, an increase in checks did not lead to a concomitant rise in offences detected.

In the Member States in which the number of offences have decreased (Belgium, France and Ireland), Belgium and France increased the total number of days worked to be checked as well as the number of their enforcement operations. These factors may indicate a comparative decline in offence rates. The Netherlands reported a decrease in the number of days worked, the number of checks carried out and offences detected. The Dutch put the decrease in offences detected down to a success in their particular preventative sectoral enforcement measures.

In general, there appears to be an overall increase in offences detected throughout the Union. An intensification or reduction in the number of checks does not automatically lead to a corresponding rise or fall in the number of offences detected. While this may in some instances reflect the deterrent effect of more frequent enforcement activities, it is evident that in a large proportion of Member States increased enforcement activity is helping to highlight a growing problem. The need for more effective and uniform enforcement throughout the Union is an issue that the Commission intends to address in its forthcoming report to the Council on this issue.

55.

6.2.5. Success rates in detecting offences vary widely


The ratio of the total number of offences detected to the total number of working days checked reveals a wide disparity in the success of Member States in targeting potential offenders. Germany and Austria were the most successful with 6.4 and 6 offences detected respectively for every 100 working days checked. They were followed by Italy (3.8 offences), Spain (1.9) and the Netherlands (1.8 offences). In some other Member States the detection levels were below 1 offence per 100 working days checked.

This ratio serves to indicate the benefits to be gained by an exchange of experience and adoption of the most effective and nationally appropriate best practice throughout the Union.

6.2.6. Interpretation of Regulation (EEC) No 3820/85 continues to be refined through rulings made by the Court of Justice of the European Communities. The period covered is up to mid 1998.

In its ruling of the 30 April 1998, Clarke & Sons and Ferne, Case C-47/97, Rec. 1998, p.I-2147, the Court established that a passenger transport service, supplied on a number of occasions pursuant to a block reservation made by a tour operator and providing for a single journey from an airport to a hotel with a stop, on occasions at a tourist attraction, where the precise route to be taken is not predetermined, does not constitute a regular service within the meaning of Article 4 i of the Regulation. Consequently, such services cannot claim exemption from the provisions of the Regulation. The Court considered what constituted a regular service by reference to Article 2 i of Regulation (EEC) No 684/92 i. The main factors to be considered should be that the service is open to all; provides for the carriage of passengers at specified intervals along specified routes; has a degree of regularity in the service exemplified in the provision of a timetable; and is not dependent on reservations made by customers but is predetermined by the transport undertaking.

In Sjöberg, Case C-387/96, Rec. 1998 p. I-1225, the Court ruled that the exception in respect of vehicles used by public authorities to provide public services which are not in competition with professional road hauliers, provided for in Article13(1)(b) of the Regulation does not apply to vehicles belonging to an undertaking which is wholly owned by a public authority and which operates a public passenger service under a contract granting it an exclusive right for a specified period following a call for competing tenders. While the Court recognised the Commission's view that the essential consideration was the absence of competition during the period of the contract, it ruled against the Commission's view, considering that the exemptions should be interpreted narrowly to respect the aims of the Regulation - road safety and no distortion of competition. Absence of competition with professional transport operators, in the Court's view, should be seen not only during performance of the contract, but also at the time when the exclusive right to operate a public service is granted. The Court has therefore clarified the notion of vehicles used by public authorities to provide public services which are not in competition with professional transport operators to mean only vehicles for which no element of competition occurs not even prior to the granting of a contract.

56.

6.2.7. Digital tachograph implementation draws nearer


Council Regulation (EC) No. 2135/98 i was adopted by the Council on 24 September 1998. It amends Regulation (EEC) 3821/85 on recording equipment and Directive 88/599/EEC concerning the application of Regulations (EEC) 3820/85 and (EEC) No 3821/85. In so doing it paves the way for the introduction of the new digital tachograph. A Committee on the Adaptation of the Tachograph has been constituted, comprising representatives of the Member States, enforcement bodies, the social partners and manufacturers to draw up the specifications of the new tachograph. Once these have been agreed and are published in the Official Journal, 24 months later vehicles put into service for the first time must be fitted with the new recording equipment. In addition, those goods and passenger vehicles having a maximum weight exceeding 12 and 10 tonnes respectively and which were registered for the first time from 1 January 1996 shall, in so far as the transmission of signals to their recording equipment is exclusively electrical, fit the digital tachograph when their equipment needs replacement. Member States will ensure that they are in a position to issue driver cards no later than 21 months following the date of publication of the specifications.

The Committee is close to finalising its views on the specifications and it is hoped that these will be agreed by the end of 1999.

57.

6.2.8. Exchange of views on enforcement


Several meetings of national experts were arranged to discuss and exchange views on the implementation of the Regulation and more recently in connection with the digital tachograph. During these meetings, national experts identified various differences of opinion between Member States in the interpretation and enforcement of the Regulation's provisions. The Commission has taken note of the diverging views and the desire to promote a harmonised approach. The Commission has been encouraged by the constructive dialogue that has taken place and intends to address these concerns initially within its forthcoming report to the Council on effective and uniform enforcement.

58.

6.2.9. Introduction of working time for the road transport sector


On 18 November 1998 the Commission published a package of measures (COM 662/98 final) i designed to bring those sectors and activities currently excluded from the general working time directive i within its scope. Within the road transport sector, non-mobile workers are to be included within the provisions of the general directive, while mobile workers, including self-employed drivers, are to be covered by a separate directive.

In its White Paper, the Commission had originally envisaged incorporating working time within the Regulation but since then it took on board the reservations of the Member States; the reluctance of the employer's federation; the desirability of a broader range of activities to be regulated; the diversity of arrangements in Member States and the need to recognise subsidiarity - for these reasons a separate directive was proposed. The Commission proposal envisages the working time rules operating in a supplementary way to the basic rules on driving times and rest periods contained in the Regulation.

The Parliament at first reading endorsed the Commission's proposal and advocated stricter rules i. The Economic and Social Committee did likewise i. At the time of drafting this report, the debate in the Council is continuing, but progress has been limited.

59.

6.2.10. Final comments


Effective application of the rules on driving times and rest periods is in everyone's interest. The Commission continues to encourage all Member States to take co-operative initiatives promoting exchanges of information and personnel as well as undertaking joint exercises. This can only enhance enforcement practices and contribute to a better understanding of the application of the Regulation.

The Commission is currently drawing up a report to the Council on the effective and uniform enforcement of the Regulation, based on input from the Member States, which may contain proposals to improve enforcement. The coming introduction of the digital tachograph should be the first step in a more systematic and wide-ranging review of enforcement standards and practice.


60.

Annex A



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61.

Note


Entries for Belgium, Italy, Spain and Sweden are based on figures supplied by national experts from these countries in 1995. Data for other Member States was not supplied.


62.

ANNEX B


Statistical data

63.

1. Reference period


From 1 January 1995 to 31 December 1996.

64.

2. Calculation of minimum checks to be carried out


(Article 2 of Directive 88/599/EEC) i


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65.

Note


From 1 January 1996 to 31 December 1996

Figures relate to total number of goods vehicles over 1,524 kgs and large public service vehicles registered in the State. A number of these would be exempted from Council Regulation (EEC) No. 3820/85. However there is no breakdown of figures available.

The Netherlands explained that the number of vehicles specified at (b) is lower than shown in the survey for 1993-94. A substantial increase in that period (as compared with 1991-92) is presumably the result of the substantial increase in the number of licensees for whom it was at the time insufficiently clear whether they were using vehicles to which the provisions of the Regulation were applicable. The figures specified in 2 (c) and 2 (d), which are also smaller, are directly connected with this.


66.

3. Checks


67.

3.1 Number of checks at the roadside



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68.

Note


From 1 January 1996 to 31 December 1996

This total includes statistics for vehicles for which no differentiation between goods and passengers was provided.

EEC total, including nationals.

Where the Member States were unable to supply more detailed figures.

France does not distinguish between nationals and non-nationals, but between residents and non-residents.


69.

3.2 Number of drivers checked at premises of undertaking



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70.

Note


From 1 January 1996 to 31 December 1996

Total number provided.

This number does not include 101 carriages, where differentiation between carriage on own account and carriage for hire or reward could not be provided.


71.

3.3 Number of working days checked at the roadside



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72.

Note


From 1 January 1996 to 31 December 1996

This total includes statistics for vehicles for which no differentiation between goods and passengers was provided.

EEC total including nationals

Where the Member States were unable to supply more detailed figures

France does not distinguish between nationals and non-nationals, but between residents and non-residents.


3.4 Number of working days checked at premises of undertaking.


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73.

Note


From 1 January 1996 to 31 December 1996

Total number provided.

This number does not include 61 carriages, where differentiation between carriage on own account and carriage for hire or reward could not be provided.


74.

4. Offences


Number of offences recorded.

4.1 Article 6 of Regulation (EEC) No 3820/85: driving period.


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No disaggregated figures provided

Total number of driving period offences without distinction.

France does not distinguish between nationals and non-nationals, but between residents and non-residents.

Six days maximum driving period offences included within weekly rest period.


75.

4TTTABLE.2 Article 7 of Regulation (EEC) No. 3820/85: breaks



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No disaggregated figures provided.

Total number provided.

Total number of break offences provided. France does not distinguish between nationals and non-nationals, but between residents and non-residents.

The breaks too short offences are included in statistics for driving for more than 4,5 hours without break.


76.

4.3 Article 8 of Regulation (EEC) No 3280/85: rest periods



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77.

Note


No disaggregated figures provided

France does not distinguish between nationals and non-nationals, but between residents and non-residents

Daily and weekly rest periods offences together.


4.4 Article 14 of Regulation (EEC) No. 3820/85: Service timetable and Duty roster.


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No disaggregated figures provided

France distinguishes between residents and non-residents, not nationals and non-nationals