It has taken nearly three years to work its way through the adoption process but a major reform of the EU road transport sector has just been published in the shape of two Regulations and a Directive. Paul Clarke explains its relevance to UK hauliers, even after the end of the EU exit transitional period.
The Mobility Package
The Mobility Package, as the European Commission has dubbed the regulations and directive together, aims to improve drivers’ working conditions, introduce special rules for those being sent to work in other countries and to tackle some anti-competitive elements of the European haulage market.
Regulation (EU) 2020/1054 (https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32020R1054&from=EN) lays down minimum requirements on maximum daily and weekly driving times, minimum breaks and daily and weekly rest periods as well as introducing new rules on positioning by means of tachographs. It comes into force on 20 August 2020.
Regulation (EU) 2020/1055 (https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32020R1055&from=EN) updates three earlier Regulations (1071/2009, 1072/2009 and 1024/2012) to guarantee fair competition and a level playing field in the haulage market. It will come into force on 21 February 2022.
Directive (EU) 2020/1057 (https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32020L1057&from=EN) lays down specific rules for posting drivers in the road transport sector, that is sending them to work in a country other than their home State. It will come into force on 2 February 2022.
Implications for the UK
As can be seen from the implementation dates, only part of the Package will be in force when the UK finally leaves the EU at the end of December 2020 so the question arises, is it relevant to the UK industry? Given that the EU will remain a hugely significant trading partner, whatever the outcome of the current trade negotiations, the answer has to be yes. Hauliers will continue to travel in their thousands from the UK to the Union and drivers from across the Member States will continue to work and drive on this side of the Channel.
The rules under which they will be operating will therefore be of keen interest to British transport operators who will no doubt have an eye on the proposals to make access to the road haulage market fairer and to clamp down on firms trying to gain an unfair advantage over their competitors. Equally, the repeated emphasis by EU negotiators on the need to maintain a level playing field in relations between the UK and the Union after Brexit refers specifically to both sides observing standards in sectors such as haulage rather than trying to gain a commercial advantage by undercutting the other.
In EU terms, “posted workers” are employees sent by their employer to carry out a service in another EU Member State on a temporary basis, in the context of a contract of services or a hiring out through a temporary agency. They remain in the host Member State only temporarily and do not integrate into its labour market so, in other words, they fit exactly the description of lorry drivers working temporarily in states other than the one where their employer is based.
The new rules give a clear legal framework to prevent differing national approaches and to ensure fair remuneration for such drivers. Posting rules will also apply to cabotage, the system whereby a foreign truck remains to make national deliveries on the territory of one EU country immediately after an international delivery from another.
Improving conditions for drivers
Changes are to be introduced to help ensure better rest conditions for drivers and to allow them to spend more time at home, rather than on the road and sleeping in their cabs. Companies will have to organise their timetables so that drivers in international freight transport are able to return home at regular intervals (every three or four weeks depending on the work schedule).
The mandatory rest period at the end of the week, known as the regular weekly rest, can no longer be taken in the truck cab and, if this rest period is taken away from home, the company must pay for accommodation costs. In exceptional cases, new rules will allow drivers to exceed the regulated driving time to reach home to take their weekly rest, if they are very close to their home base. The drivers must, however, document the exceptional circumstances resulting in this departure from the rules.
The new rules state that, in any two consecutive weeks, a driver must take at least two regular weekly rest periods or one regular weekly rest period and one reduced weekly rest period of at least 24 hours. A weekly rest period must start no later than at the end of six 24-hour periods from the end of the previous such weekly rest period. However, a driver engaged in international transport of goods may, when working outside the Member State of establishment, take two consecutive reduced weekly rest periods provided that the driver in any four consecutive weeks takes at least four weekly rest periods, of which at least two must be regular weekly rest periods.
Any reduction in weekly rest period must be compensated by an equivalent period of rest taken en bloc before the end of the third week following the week in question. A driver engaged in multi-manning may in future take a break of 45 minutes in a vehicle driven by another driver provided that the driver taking the break is not involved in assisting the driver driving the vehicle.
Fairer competition and fighting illegal practices
The new legislation keeps the existing limits for cabotage (three operations within seven days) but, in order to tackle fraud, vehicle tachographs will be used to register border-crossings. While the cabotage system helps to reduce the number of trucks travelling without loads, and saves fuel, the Commission has been determined to prevent “systematic cabotage”, with which some haulage companies have tried to cheat the system. There will now be a cooling-off period of four days before more cabotage operations can be carried out within same country with the same vehicle.
Another anti-competitive practice which is tackled by the Package is the use of what are known as letterbox companies; those businesses that exist as a mailing address only, with their main activities taking place in another EU country. They are usually set up to circumvent legal obligations in areas such as taxation, social security, VAT and wages. In future, road haulage businesses will need to have substantial activities in the Member State in which they are registered. The new rules will also require trucks to return to the company’s operational centre every eight weeks (rather awkward if the company is registered in Cyprus while mainly operating in France or the UK).
Bringing vans under the rules
Since operators increasingly use vans (light commercial vehicles in the language of the legislation) to provide international transport services, vehicles with a maximum permissible mass of between 2.5 and 3.5 tonnes that are used for the transport of goods, are also to be made subject to EU rules for transport operators. This will mean that vans must be equipped with a smart tachograph. In vehicles which are not yet so equipped, the crossing of Member State borders must be recorded in the tachograph at the nearest possible stopping place at or after the border. Transport operators will be expected to bear the costs of training staff to deal with these new requirements.
Operators using vans in this way will in future need to show a minimum financial standing to ensure that they have the means to carry out operations on a stable and long-lasting basis (as Traffic Commissioners currently require in the UK for each heavy goods vehicle (HGV) an operator runs) . However, since the operations conducted with these vehicles are generally of a limited size, the financial standing rules will be less demanding than those that apply to operators using HGVs.
One of the driving forces behind the adoption of the Mobility Package was the differing interpretation being put on the existing requirements by individual Member States. It was also apparent that rules on, for example, rest periods, were not being vigorously enforced. The new legislation therefore gives a clear legal framework to prevent differing national approaches and to ensure fair remuneration for drivers. As the European Transport Workers Federation (ETF) said: “This will put an end to the damaging situation where truck drivers spent months living and working in their vehicles in appalling conditions”.
The passage of these items of legislation has been marked by a distinct level of disagreement between the countries of Western Europe (largely in favour, and where much of the cabotage work is carried out) and Eastern Europe (providing many of the drivers, and mainly against). Transport ministers from countries including Bulgaria, Hungary, Latvia, Lithuania, Poland and Romania have spoken out against the new rules arguing, for example, that the four-day cooling off period will generate at least three million tonnes of additional CO2 emissions per year in the EU.
Meanwhile the International Road Transport Union (IRU) has pointed out that the aim of ensuring that drivers can enjoy the use of safe accommodation will be hindered by the continuing lack of secure truck stops across the EU. The Commission has said that it intends to certify safe and secure parking areas but the problem remains that there are simply too few of them.
More surprisingly, the Commission itself has joined in criticism of the new legislation and has gone so far as to publish a Declaration in the Official Journal, available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32020C0731(01)&from=EN. While this welcomes the social improvements in the legislation, it regrets that changes agreed between the Member States and the European Parliament include elements that are not in line with the ambitions of the recently published European Green Deal — particularly the aim of achieving a climate-neutral EU by 2050.
The Commission highlights the new requirements for the compulsory return of vehicles to the Member State of establishment every eight weeks as this was not part of its original proposal and has not been the subject of an impact assessment. Planning to carry out further examination of the environmental and other implications, it reserves the right to bring forward “a targeted legislative proposal” before the relevant provisions enter into force.