Explanatory Memorandum to COM(2017)281 - Amendment of Regulation (EC) No 1071/2009 and Regulation (EC) No 1072/2009 with a view to adapting them to developments in the road transport sector

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dossier COM(2017)281 - Amendment of Regulation (EC) No 1071/2009 and Regulation (EC) No 1072/2009 with a view to adapting them to developments in ...
source COM(2017)281 EN
date 31-05-2017


1. CONTEXTOFTHEPROPOSAL

• Reasons for and objectives of the proposal

Regulation (EC) No 1071/2009 on access to the occupation of road transport operator1 and Regulation (EC) No 1072/2009 on access to the international road transport market2 ('Regulation (EC) No 1071/2009', Regulation (EC) No 1072/2009 or the Regulations) were adopted as part of a package of measures aimed at modernising the rules governing admission to the occupation of road transport operator and access to the road transport market.

As a global objective, the Regulations support the good functioning of the single market in road transport, its efficiency and competitiveness.

Regulation (EC) No 1071/2009 lays down the provisions that undertakings must comply with, in order to access the occupation of road transport operator (passenger and freight). It also lays down certain provisions to regulate and enable enforcement by Member States.

Regulation (EC) No 1072/2009 lays down the provisions that undertakings intending to operate on the international road haulage market and on national markets other than their own (cabotage) must comply with. It includes provisions related to the documents to be issued to such undertakings by the Member State of registration (Community license), as well as to drivers from third countries (driver attestation).

An ex-post evaluation of the Regulations was carried out in 2014-20153 and concluded that the Regulations were only partly effective in achieving their original objective of creating suitable competitive conditions in the market. The main difficulties encountered were linked to shortcomings of the rules and their enforcement. This proposal, which is a REFIT initiative,4 is also intended to correct these shortcomings.

• Consistency with existing policy provisions in the policy area

This proposal is part of a broader ongoing review of the road transport legislation. It is closely linked to other existing legal acts concerning road transport, in particular the social legislation for road transport (Regulation (EC) No 561/2006,5 Directive 2002/15/EC,6 Directive 2006/22/EC7 and Regulation (EU) 165/20148). Better enforcement of 'market rules', as suggested in the present proposal, will therefore be made easier through existing synergies while, conversely, contributing to the enforcement of social legislation in an indirect manner.

• Consistency with other Union policies

The proposal contributes directly to one of the priorities of the current Commission, namely to promote a deeper and fairer single market. Its main objective is to further improve the single market for road transport through amendments intended to eliminate causes for disparities and to ensure better enforcement of the rules.

OJ L 300, 14.11.2009, p. 51.

OJ L 300, 14.11.2009, p. 72.

The Commission published a Staff Working Document with the results of this evaluation:

https://ec.europa.eu/transport/sites/transport/files/swd20160350.pdf

Initiative No 10 in annex 2 to the Commission Work Programme 2017.

OJ L 102, 11.4.2006, p. 1.

OJ L 80, 23.03.2002, p. 35.

OJ L 102, 11.4.2006, p. 35.

This proposal meets the REFIT objective by increasing effectiveness and reducing the administrative and regulatory burden for businesses. It also gives the Member States the possibility of reducing certain unnecessary implementation costs relating to enforcement of the rules.

2. LEGALBASIS, SUBSIDIARITYAND PROPORTIONALITY

• Legal basis

The legal basis for the Regulations and for the proposed amendment is Article 91(1)of the Treaty on the Functioning of the European Union ('TFEU') (formerly Article 71 TEC).This article provides the basis for the adoption of EU legislation laying down notably: (i) common rules applicable to international transport to or from the territory of a Member State or passing across the territory of one or more Member States (Article 91(1)(a) TFEU); and (ii) the conditions under which non-resident carriers may operate transport services within a Member State (Article 91(1)(b) TFEU).

• Subsidiarity

The EU shares competence with Member States to regulate in the field of transport pursuant to Article 4(2)(g) TFEU. However, amendments to existing rules can only be made by the EU legislator itself.

Besides, the existing differences in Member States practices and weaknesses in respect of enforcement are detrimental to the operation of the single market, are intrinsically tied to shortcomings in harmonisation and can therefore effectively be addressed only by the Union.

• Proportionality

As indicated in Section 6.3 of the impact assessment report, the policy proposal is proportionate to the problems that have been identified and it does not go beyond what is needed to solve them. On SMEs, in particular, the envisaged policy measures would in general have no disproportional impact. The proposal is mainly focused on a simplification and clarification of the existing regulatory framework, together with more robust enforcement requirements, and it does not create additional regulatory requirements for interested parties which would not be proportionate to the identified problems.

• Choice of the instrument

Since the legal acts to be amended are Regulations, the act amending them should in principle take the same form.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS ANDIMPACTASSESSMENTS

• Ex-post evaluation/fitness check of existing legislation

The Regulations were subject to an ex-post evaluation.9 This evaluation was complemented by an external study.10

On enforcement, the main issues identified are the following:

9 See Footnote 3.

ec.europa.eu/transport/sites/transport/files.

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– There are different levels of control by Member States, in particular on the stable

establishment and good repute criteria for access to the profession and illegal cabotage operations.

– There is a lack of cooperation between (at least some) Member States, notably on

compliance with the stable and effective establishment criterion for access to the profession.

Other shortcomings of the rules concern the fact that some rules are not specific on given questions or leave explicit room for unilateral measures by Member States, all of which has led to differences in practice that are negative for the operation of the single market:

– The definition of stable and effective establishment, including the term operating

centre, leaves open many questions. As a consequence, different practices have emerged.

– The period of time before good repute is reinstated is neither defined nor otherwise

regulated in Regulation (EC) No 1071/2009, and varies widely between Member States.

– Invoking Article 3(2) of Regulation No 1071/2009, some Member States impose

additional conditions on access to the occupation of road haulier.

– The cabotage provisions are not specific on certain points and this has led to

differences in Member States practices. Some Member States accept several loading and/or unloading operations within the same cabotage operation, while others do not.

Regulation (EC) No 1071/2009 leaves Member States the faculty to apply its provisions to vehicles the permissible laden mass of which does not exceed 3.5 tonnes ('LCVs'), which leads to different requirements for the same vehicles in different Member States.

Consultations

of interested parties

The consultations of interested parties conducted in preparation of this proposal complied with the minimum standards for the consultation of interested parties set out in the Commission Communication of 11 December 2002 (COM(2002) 704 final).

The consultation process included two types of actions – opinion gathering and data collection. Open and targeted consultation methods and various consultation tools were used.

As for the open consultation, an online public consultation took place between 15 June and 15 September 2016. The main objectives were (i) to gather additional information on the existence of the problems identified during the ex-post evaluation, as well as information allowing the quantification of the problems found to exist, (ii) to seek the opinion of interested parties on possible policy measures, and (iii) to assess the expected impacts of the possible policy measures. The Commission received 175 contributions: 23 replies from medium and large companies (hauliers and shippers with 50 or more employees); 18 replies from small companies (hauliers and shippers with 49 or fewer employees); 17 replies from logistics industry representatives; 33 replies from associations representing road transport workers; 48 replies from associations of road transport operators; 18 replies from national authorities and relevant associations; and 18 replies from other respondents.


Moreover, as part of the public consultation 22 position papers were received from a variety of interested parties including industry associations, workers organisations, national authorities, enforcement organisations, NGOs and experts.

The consultation paper, the contributions received and a summary of these contributions are available on the webpage A road transport stategy for Europe of the Directorate-General for Mobility and Transport and on the Commission's Your voice in Europe' website.11

The targeted consultation process included the following:

• A SME panel survey focused on issues around the use of LCVs in road transport and the potential impact of policy measures related to the extension of the scope of the legal framework to cover LCVs. A total of 17 responses were received, including 7 providers of road freight transport services using owned or hired vehicles for hire and reward, 7 firms that use owned or hired vehicles for the transport of their own goods (own account operators) and 8 users of road freight transport services.

• A survey of authorities to obtain the views of the national authorities on the policy

measures proposed here in terms of their expected impact on the implementation and enforcement of the legal framework and to obtain data or estimates of the possible costs those measures could entail for the authorities. A total of 18 responses were received, covering 16 Member States12 and 1 from Euro-Contr ôle- Route.

• A survey of hauliers to obtain relevant data from transport operators on costs and characteristics of operations that could be used in the assessment of the impacts (as part of the baseline scenario) and also their views and estimates on the costs or savings from the policy measures under consideration. A total of 80 firms responded to the survey of hauliers.

• Telephone interviews of interested parties (31 interviews of national and international transport companies and the respective associations and national authorities) to gather more detailed insight into the opinions of interested parties on the different measures under consideration, obtain data or estimates of costs and views on possible difficulties that may arise in relation to each measure.

• Several stakeholder seminars, meetings and other events were organised during the course of the ex-post evaluation and impact assessment of this initiative, involving the social partners and the Commission also participated in several initiatives organised by the social partners.

The information gathered during the consultation confirmed the existence of the main problems identified during the evaluation phase, as well as the pertinence of the main objectives of the intervention.

On the potential policy measures identified during the consultation, there was strong support for measures intended to strengthen enforcement.

On changes to the cabotage restrictions, there were mixed reactions, with some groups of interested parties supporting changes and others expressing reluctance. High-wage Member States, supported by trade unions, tend to favour stricter rules on cabotage, whereas low-wage

Please see ec.europa.eu/transport/node/4817.


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Member States, supported by most of the hauliers' associations, tend to favour further liberalisation of the cabotage rules.

There was a positive reaction to the idea of adopting measures intended to strengthen the criteria underlying the requirement of a stable establishment. Many interested parties opined that it was necessary to ensure that only cases of real activity in the Member State of establishment qualify under the corresponding rules.

The inclusion of LCVs in the scope of the Regulations was also seen as a positive measure by a majority of interested parties consulted.

• Collection and use of expertise

An external contractor contributed to the ex-post evaluation report and an accompanying study for the impact assessment,13 which were concluded in April 2017.

Impact

assessment

The proposal is accompanied by an impact assessment, which has received a positive opinion with reservations from the Regulatory Scrutiny Board.As detailed in Annex 1 to the impact assessment report, the reservations were addressed by explaining in greater detail the magnitude of the identified problems and the REFIT nature of the initiative, improving the rationale for the structure of the policy options and better explaining the interactions between this proposal and the initiative concerning road social legislation.

Four policy packages were considered, reflecting an increasing level of regulatory intervention and entailing an increasing level of expected impacts. The first policy package focused on clarification of the legal framework. The second policy package focused on the strengthening of enforcement. The third policy package focused on substantive changes in the rules, in particular on cabotage and establishment, on top of the measures covered by the first two policy packages. The fourth policy package involved an extension of the scope of the Regulations to LCVs.

The preferred option is a combination of the third policy package, with amendments to the cabotage rules and the establishment provisions,and a partial extension of Regulation (EC) No 1071/2009 to LCVs.

Overall it is the most effective option and it is estimated to generate savings for businesses in the range of EUR 2.7-5.2 billion for the EU-28 in 2020-2035. It is expected to reduce infringements of cabotage rules by up to 62% and to reduce the risk of formation of letterbox companies by around 10%, which should have a positive impact on working conditions. It should also lead to more professionalisation of LCV operators. The preferred option will, however, trigger increased implementation and enforcement costs for national authorities in the range of EUR 65-166 million for the EU-28 in 2020-2035. The partial application of Regulation (EC) No 1071/2009 to LCVs will also trigger additional compliance costs for businesses in the order of a 4-10% increase in operating costs.

Contents

1.

The proposal is in line with the preferred option in the impact


assessment.


Regulatory fitness and simplification

2.

The proposal pursues the REFIT objective of increasing effectiveness and reducing regulatory burdens for businesses. This is done mainly through the mandatory acceptance of electronic


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transport documents in international transport by national enforcement authorities and through clearer and more harmonised rules on access to the profession. While enforcement costs for public authorities are expected to increase, this increase is of a much lower magnitude than the savings for businesses and is anyway justified by the improvement in the competitive conditions, with fewer infringements of cabotage rules, fewer letterbox companies being created and better working conditions for transport workers.

• Fundamental rights

The proposal respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, insofar as it provides for additional data to be included in the national electronic registers of road transport undertakings and to be processed by national authorities, it complies with Article 8 of the Charter, since this data is necessary to achieve the purpose of a better national and cross-border enforcement of the provisions of the Regulations.

4. BUDGETARYIMPLICATIONS

The proposal will have no implications on the Union budget.

5. OTHERELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

Information on the prevalence of LCVs in national and international transport for hire and reward should be further developed. Therefore, close monitoring and data collection is necessary to follow the market trends in this respect. This will be done through a combination of national data gathering and Member State reporting. This monitoring should start immediately after the entry into force of the Regulations.

• Detailed explanation of the specific provisions of the proposal

The main elements of the proposal are the following:

Regulation (EC) No 1071/2009

Article 1 – Subject matter and scope

Current Article 1(4)(a) excludes hauliers operating solely with LCVs from the scope of the Regulation, unless otherwise provided by Member States (cf. introductory sentence). In order to ensure a minimum level of professionalisation of the LCV sector by way of common rules and thus to approximate competitive conditions between operators, it is proposed to delete this provision and to make certain rules mandatory for this category of operators as well.

To this end, it is proposed to add a new paragraph 6 excluding hauliers operating solely with LCVs from some, but not all of the requirements of the Regulation. Requirements on the transport manager, good repute, professional competence and obligations related to those requirements are not proposed as mandatory, but Member States would keep the possibility to apply them as hitherto. By contrast, the requirements regarding effective and stable establishment and appropriate financial standing are proposed to apply to such hauliers in all Member States. The scope for differences between Member States would be reduced accordingly.

Article 3 – Requirements for engagement in the occupation of road transport operator

3.

It is proposed to delete paragraph 2, which so far permits the imposition of additional conditions on access to the occupation, beyond the four criteria laid down in Article 3(1). This


possibility has led to divergences in respect of the conditions for access to the profession. Therefore, and because this possibility has not proven to be required in light of imperative needs, it should be abolished.

Article 5 – Conditions relating to the requirement of establishment

It is proposed to clarify the terms of Article 5 to ensure that undertakings established in a Member State have a real and continuous activity there. In detail, the following is proposed: in point (a), a reference to commercial and labour contracts is added, which therefore would also need to be kept in the premises situated in the Member State of establishment; point (c) is split into points (c) and (d) to better distinguish between the conduct of administrative and commercial activities and operations involving vehicles; point (e) is added to require undertakings to hold assets and employ staff in the Member State of establishment in proportion to the establishment's activity.

Article 6 – Conditions relating to the requirement of good repute

In Article 6, a number of amendments are proposed to clarify and further harmonise the assessment of good repute and to extend the list of infringements which may lead to loss of good repute. In detail, the following is proposed:

Paragraph 1 is amended to better circumscribe the categories of persons whose conduct should be taken into account for the purposes of assessing an undertaking’s good repute. One additional point (vii) is added in point (a) of the third subparagraph, so that serious infringements of national tax rules are taken into account in the assessment of the good repute of the transport manager or transport undertaking. Two additional points (xi) and (xii) are added in point (b) of the third subparagraph, so that serious infringements of EU rules on the posting of workers and the law applicable to contractual obligations are taken into account in the assessment of the good repute of the transport manager or transport undertaking. Article 6(2) is amended to further specify the administrative procedure which must be followed by the competent authority of the Member State of establishment of a transport undertaking or transport manager having committed a serious infringement of national or EU rules in order to determine whether the transport undertaking or transport manager concerned has lost good repute. A new paragraph 2a replaces former point (b) of Article 6(2) and specifies that the Commission is empowered to adopt delegated acts establishing infringements of Union rules which may lead to the loss of good repute, in addition to those set out in Annex IV. In this context, it is proposed to empower the Commission to define the degree of seriousness of infringements also according to their potential to distort competition (which concerns notably cabotage rules). Infringements likely to undermine working conditions should, because of their competitive effects, be treated in the same way.14

Article 7 - Conditions relating to the requirement of financial standing

It is proposed to amend paragraph 1 to provide for specific, less demanding,conditions to be fulfilled by hauliers operating solely with LCVs. In paragraph 2, it is proposed to clarify the means by which undertakings may prove their financial standing in the absence of certified annual accounts, in order to enable the assessment of compliance with this criterion by enforcers, in particular for newly created undertakings which have no certified accounts yet.

Article 13 – Procedure for the suspension and withdrawal of authorisations

4.

The proposed amendment to Article 13(1)(c) clarifies the position of competent authorities where undertakings no longer comply with the requirement of financial standing. Within the


The possibility for the Commission to define the degree of seriousness of infringements also according

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time limit set, the undertaking is expected to demonstrate that that requirement is again satisfied (and not only that it will be satisfied in the future).

Article 14 – Declaration of unfitness of the transport manager

It is proposed to specify that, after having lost good repute, a transport manager cannot be rehabilitated by the competent authority earlier than one year from the date of loss of good repute (cf. new subparagraph added to paragraph 1). The intention is to avoid important divergences on this point between Member States.

Article 16 – National electronic registers

In paragraph 2, it is proposed to add elements of information to be included in the national electronic registers. This should allow better enforcement of the rules on access to the profession.

Article 18 – Administrative cooperation between Member States

It is proposed to further specify the terms of the cooperation between Member States. In particular, it is proposed to set a maximum time period for Member States to reply to reasoned requests from other Member States and an obligation for Member States to conduct inspections concerning non-compliance with the criteria on establishment by undertakings established in their territories on the basis of evidence provided by other Member States.

Article 26 – Reporting

It is proposed to require that Member States report to the Commission information about the activities of hauliers operating with LCVs in their territory (new paragraph 3). Draft new paragraph 4 provides that the Commission shall report to the European Parliament and the Council by the end of 2024 on the presence of LCV operators in national and international road transport and that, on this basis, it will reassess whether there is a need to propose additional measures.

Annex IV – Most serious infringements for the purposes of Article 6(2)(a)

Paragraph 1, point (b) is amended in order to make it consistent with Regulation (EC) No 561/2006 on the harmonisation of certain social legislation relating to road transport15 and to remove legal uncertainty in its implementation.

Regulation (EC) No 1072/2009

Article 1 – Scope

In paragraph 1a new subparagraph is added to clarify that the carriage of empty containers or pallets is to be considered as a carriage for hire and reward only if it is subject to a transport contract between a consignee and a consignor.

Article 2 – Definitions

Point 6 is amended to clarify that a cabotage operation can involve several loading points, several delivery points or several loading and delivery points.

Article 8 – Cabotage – general principle

The following amendments are proposed:

In paragraph 2 the maximum number of cabotage operations which may be carried out in a host Member State following an incoming international carriage is removed, while reducing the maximum number of days for carrying out such cabotage operations. In line with the


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conclusions of the Impact Assessment, these amendments render the rules easier to enforce.In paragraph 3, the requirement to produce evidence of each cabotage operation is suppressed, since it becomes redundant as a consequence of the amendment of pararaph 2. New draft paragraph 4a specifies that evidence of compliance with the cabotage restrictions shall be provided during the duration of the road side check and possibly through electronic means, thereby simplifying procedures and removing legal uncertainty regarding the timing for the presentation of the evidence.

Article 10 – Safeguard procedure

It is proposed to amend Article 10(3) to update the reference to the relevant committee procedure, following the proposed deletion of Article 15.

Article 10a – Cabotage – checking systems

Article 10a is added to require that Member States carry out a minimum amount of checks of compliance with the cabotage provisions (i.e. 2% of cabotage operations from 1 January 2020 and 3% from 1 January 2022). It also requires Member States to carry out a minimum number of concerted roadside checks per year (3) on the cabotage provisions of the Regulation.

Article 14a – Liability

It is proposed to specify that shippers and freight forwarders shall be subject to sanctions in case they knowingly commission transport services which involve infringements of the provisions of the Regulation.

Article 17 – Reporting

It is proposed to amend paragraphs 1 and 2, specifying the date by which Member States are required to report to the Commission on the number of Community licences, certified true copies and driver attestations issued in the previous calendar year, i.e. by 31 January of the following year. New draft paragraph 3 requires Member States to report to the Commission on the number of cabotage checks performed during the previous year.