Explanatory Memorandum to COM(2023)144 - EU position in the Group of Experts of the European Agreement concerning the work of crews of vehicles engaged in international road transport (AETR), in the Working Party on Road Transport of the UNECE and, as appropriate, in relation to the notification by the UN Secretary-General pursuant to Article 21(1) of the AETR - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2023)144 - EU position in the Group of Experts of the European Agreement concerning the work of crews of vehicles engaged in ... |
|---|---|
| source | COM(2023)144 |
| date | 20-03-2023 |
1. Subject matter of the proposal
This proposal concerns the decision establishing the position to be taken on the Union's behalf in the Group of Experts on the European Agreement concerning the work of crews of vehicles engaged in international road transport (AETR) of the United Nations Economic Commission for Europe (UNECE) and in the UNECE Working Party on Road Transport (SC.1), in connection with the envisaged adoption of an amendment to the AETR Agreement as regards the introduction of a ‘force majeure’ clause.
2. Context of the proposal
2.1. The European Agreement concerning the work of crews engaged in international road transport (AETR)
The AETR aims to harmonise the legislative framework of Contracting Parties to the AETR as regards driving and rest times for professional drivers and the corresponding technical requirements for the construction and installation of the recording equipment used in vehicles (the tachograph). The AETR entered into force on 5 January 1976. It has subsequently been amended, most recently on 20 September 2010.
All Member States are parties to the AETR1.
2.2. The Group of Experts on the AETR and the Working Party on Road Transport
The Group of Experts on the AETR is a technical group set up by the Inland Transport Committee of the UNECE whose objective is to develop proposals to amend the AETR. According to the Decision establishing the Group of experts on AETR, the European Union can participate in the Expert Group2.
The Working Party on Road Transport (SC.1) is a group set up by the Inland Transport Committee to promote the development and facilitation of international transport by road. This includes harmonising and simplifying the rules and requirements related to road transport.
Proposals to amend the AETR are generally first discussed by the members of the Expert Group and then, submitted to the UNECE Working Party on Road Transport (SC.1) for endorsement. If consensus is reached in both groups, a Contracting Party of the AETR formally tables the amendment to the United Nations Secretary-General, in accordance with Article 21 of the AETR. The bodies set up in UNECE (the Expert Group on AETR and the Working Party on Road Transport) provide a forum for discussion and endorsement, so as to prepare the formal submission of an amendment according to the AETR, and to avoid objections once an amendment is formally tabled to the United Nations Secretary-General. It is therefore relevant to establish Union positions in these groups as well, so that non-EU Contracting Parties submitting proposals to the relevant UNECE bodies are aware of the position of the Union as early as possible.
However, pursuant to Article 21(1) AETR, Contracting Parties can also directly communicate the text of a proposed amendment to the UN Secretary-General, which then communicates it to all Contracting Parties. Once the formal submission to amend the AETR has been notified, Contracting Parties then have 6 months to object to the proposal. The proposal is deemed to be adopted if no Contracting Party objects to the amendment within that deadline.
2.3. The envisaged act to be considered by the Group of Experts on the AETR and the Working Party on Road Transport
On 20 February 2023, during its 31st session, the Group of Experts on the AETR is to decide on whether to submit a proposal by the Government of Belarus to amend Article 4 of the AETR regarding the introduction of a ‘force majeure’ clause (‘the envisaged act’)3 to the Working Party on Road Transport (SC.1). This envisaged act is set out in both ECE/TRANS/SC.1/GE.21/2023/24 submitted by Belarus and ECE/TRANS/SC.1/GE.21.2023.15 submitted by the Russian Federation.
The purpose of the envisaged act is to allow, for a period of up to 2 years, drivers of a Contracting Party engaged in international transport to use record sheets completed by hand, instead of a digital tachograph card, in the event of ‘force majeure’ circumstances faced by that Contracting Party.
The envisaged act, if adopted, would become binding on the parties in accordance with paragraph 6 of Article 21 of the AETR, which provides that ‘Any amendment deemed to be accepted shall enter into force three months after the date on which it was deemed to be accepted.’
3. Position to be taken on the Union's behalf
Since the start of the illegal war of aggression by the Russian Federation against Ukraine on 24 February 2022, in which the Republic of Belarus has a complicit role, the European Union has adopted sanctions against both Russia and Belarus.
These sanctions have resulted, among other consequences, in certain EU companies suspending their operations in and with Belarus and Russia. These include companies that usually supply digital tachograph cards and chips to the card issuing authorities of these two countries. As a result, Belarus and Russia are effectively in a situation where they claim not to be able to deliver tachograph cards to their drivers, who can therefore not comply with the AETR when engaged in international road transport operations falling within its scope.
As a result, both governments have proposed to introduce a ‘force majeure’ clause in the AETR, which would allow drivers who should have a digital tachograph card issued by these countries to be exempted from the use of such, and to use alternative recording methods such as record sheets. Such an alternative would enable these countries to legally continue their international transport operations by getting around a situation that is likely the result of the illegal war of aggression by Russia against Ukraine, in which Belarus has a complicit role, which led to the application of EU sanctions against Russia and Belarus. The Union’s position should therefore be against the adoption of such a proposal for amendment, as it would run counter to the objectives pursued by the EU sanctions regime.
The proposed position is also in line with EU policy not to accept any Russian or Belarussian amendments to international agreements, given Russia’s illegal war of aggression against Ukraine.
Furthermore, on substance, and independently of the geopolitical context in which it has been tabled, the proposed amendment would also significantly weaken the AETR. Indeed, under the proposal for amendment, any Contracting Party would, through a simple notification to the UNECE Working Party on Road Transport – which would itself simply be informed and not allowed to assess any justification for the ‘force majeure’ invoked by that Contracting Party – be allowed to bypass one of the primary purposes of the Agreement, namely the installation and use of harmonised recording equipment (the digital tachograph and digital tachograph card) for international transport operations. For up to 2 years, drivers who would be expected to have a driver card issued by that Contracting Party would not be obliged to use a digital tachograph card in international transport.
As a result, the enforcement of the drivers’ compliance with driving and rest times as laid out elsewhere in the AETR would be made drastically more difficult, especially since this would take place on the territory of another Contracting Party to the AETR than that of the driver. In practice, this amendment would therefore create a loophole that would likely compromise the entire purpose of the Agreement.
A Union position is required as the amendment tabled by the Republic of Belarus, if accepted, will be binding on all AETR Contracting Parties, which includes all Member States. In its judgment of 31 March 1971 in Case 22/70 AETR6, the Court of Justice of the European Union recognised that the area of the work of crews of vehicles engaged in road transport is an exclusive external competence of the Union. This competence has since been exercised in numerous legislative acts adopted by the Union co-legislators, including Regulation (EC) No 561/2006 of the European Parliament and of the Council7 and Regulation (EU) No 165/2014 of the European Parliament and of the Council8. The envisaged act has direct implications on EU law, including Regulations (EC) No 561/2006 and (EU) No 165/2014. Since the subject matter of the AETR falls within the scope of Regulation (EC) No 561/2006, the power to negotiate and conclude the Agreement and its modifications lies exclusively with the Union pursuant to article 3(2) TFEU.
4. Legal basis
4.1. Procedural legal basis
4.1.1. Principles
Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.’
Article 218(9) TFEU applies regardless of whether the Union is a member of the body or a party to the agreement9.
The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the rules of international law governing the body in question. It also includes instruments that do not have a binding effect under international law, but that are ‘capable of decisively influencing the content of the legislation adopted by the EU legislature’10.
4.1.2. Application to the present case
The Group of Experts on the AETR and the Working Party on Road Transport (SC.1) are bodies set up by the Inland Transport Committee of the UNECE.
The proposed amendment constitutes an act having legal effects. The envisaged amendment, if then adopted, would be binding under international law in accordance with 21(6) of the AETR and capable of decisively influencing the content of EU legislation, namely Regulations (EC) No 561/2006 and (EU) No 165/2014 which cover the AETR subject matter and explicitly refer to that agreement.
The envisaged act does not supplement or amend the institutional framework of the AETR.
Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU.
4.2. Substantive legal basis
4.2.1. Principles
The substantive legal basis for a decision under Article 218(9) TFEU depends primarily on the objective and content of the envisaged act in respect of which a position is taken on the Union’s behalf. If the envisaged act pursues two aims or has two components and if one of those aims or components is identifiable as the main one, whereas the other is merely incidental, the decision under Article 218(9) TFEU must be founded on a single substantive legal basis, namely that required by the main or predominant aim or component.
4.2.2. Application to the present case
The main objective and content of the envisaged act relate to transport policy.
Therefore, the substantive legal basis of the proposed decision is Article 91 TFEU.
4.3. Conclusion
The legal basis of the proposed decision should be Article 91 TFEU, in conjunction with Article 218(9) TFEU.