In a written reply to a letter sent by a Hungarian haulage association, the European Commission has reaffirmed its position that lorry drivers need not present evidence that their weekly rest has been spent outwith their cabin.
The contents of the European Commission’s reply echoes what was said in January of this year, when it was explained that according Article 36, records sheets (in case of analogue tachograph), and any manual records and printouts and the driver card (in case of digital tachograph), may be demanded to check when a driver has taken rest periods.
However, the European Commission added that “Member States’ authorities may not require documents other than those referred to in Article 36 of this Regulation”.
In addition, The Commission’s update referred to Article 4(6) of Directive 2006/22/EC, which lays down the obligation for assistance between Member States as regards checking compliance with the rules on driving and rest times.
“If, in a Member State, the findings of a roadside check on the driver of a vehicle registered in another Member State afford grounds for believing that infringements have been committed which cannot be established during the check owing to a lack of necessary data, the competent authorities of the Member States concerned shall assist each other in clarifying the situation,” read the section of the rules highlighted by the Commission in its January update.
The Commission’s clarification then went on to confirm that lorry drivers can only in practice be fined for not taking weekly rest rest outside their cabin if they are actually on their weekly break when they and their vehicle are inspected.
However, despite the ruling, haulage groups from Hungary and Poland claim that French road traffic inspectors have continued to issue fines for weekly rest violations in cases where drivers have been unable to provide hotel receipts.
As we reported in May, those haulage associations wrote to the European Commission regarding the actions of the French authorities.
The European Commission has now responded to the matter, with the letter being published on the website of Hungary’s NIT haulage association.
“After a careful analysis of your letter, it is clear that cooperation between Member States on the enforcement of the social pillar of Mobility Package I is still lacking. We believe that more cooperation, notably via the organisation of joint inspections, would be crucial to achieve more convergence and more coherence of enforcement of this legislation on the ground,” replied the European Commission.
The letter continues: “Indeed, experience has shown that the presence of the competent authorities of Member States of establishment, side by side with the competent authorities of the host Member States, have a very strong added value. This would certainly be useful to better understand the practices at stake, particularly in relation to checks on the right to suitable accommodation and on the obligation to organise the return ‘home’ of the driver. In that regard, it is worth reminding that the European Labour Authority (ELA) can support Member States from an organisational and financial perspective when organising these joint inspections.” The European Commission then goes on to recommend that the Hungarian haulage association contact the Hungarian authorities in order to request joint inspections conducted in France with Hungarian road traffic police.
The Commission also said it would “remind the French authorities, as well as the rest of Member States, about the need for more frequent and intensive cooperation in this field”.
Moreover, the letter repeats the conclusions that were drawn during January’s update: “As indicated in the DG MOVE’s note on enforcement practices of Article 8(8) of Regulation (EC) No 561/2006 on the ban on taking regular weekly rest periods in a vehicle (3), roadside enforcers within the performance of their duties are allowed to ask drivers where they spent their regular weekly rest. However, pursuant to Article 34(3) of Regulation (EU) No 165/2014, Member States’ authorities may not require drivers to provide documents attesting activities while away from the vehicle to prove compliance with Article 8 of Regulation (EC) No 561/2006. Consequently, roadside enforcers cannot fine drivers for not showing these documents.”
Besides the above, the letter reveals that checks on where weekly rest is spent must generally be carried out at the premises of undertakings, rather than the roadside.
The reason given for this, as is stated in the letter, is as follows: “Annex I of Directive 2006/22/EC (4) distinguishes between what should be normally checked at the roadside and what should be normally checked at the premises of the undertakings. Recital 9 of the Directive states that ‘Member States should seek to ensure, without prejudice to the proper execution of the tasks imposed by this Directive, that roadside checks are executed efficiently and quickly, with a view to completing the check in the shortest time possible and with the least delay for the driver.’ In this context, it should be noted that the monitoring of compliance with the obligations falling on undertakings as regards the payment for the accommodation of drivers and the organisation of the work of drivers, in accordance with Article 8 (8) and (8a) of Regulation (EC) No 561/2006, is included in point 5 of Part B of Annex I to that Directive, which means that it must generally be carried out at the premises of undertakings.”
In the event a driver is fined for weekly rest violations as a result of not providing documents such as hotel receipt, the European Commission says that companies can appeal to the relevant member state’s authorities:
“When authorities request documents, other than those resulting from Article 36 of Regulation (EU) No 165/2014 at the roadside they would be in breach of the Directive and operators affected by such practices, should appeal to the competent French authorities and/or jurisdictions for reimbursement of the imposed fines. Similarly, excessively long roadside checks (e.g. 16 hours as mentioned in the letter) would not be in line with the principle of proportionality and the spirit of recital 9, without prejudice to specific circumstances, such as the lack of cooperation of the driver.”
The Commission concluded its letter by saying that all Member States would be informed about the key messages above, while enquiries will also be made in France about the control practices reported by the Hungarian haulage association.
