Last reviewed 15 March 2012
David Lowe discusses the driver attestation, introduced by the EU as a legal requirement for certain drivers working abroad.
The definition of “attestation” (based on the Oxford Concise English and Collins French dictionaries) is “to declare that something exists or is true or a certificate testifying to the effect that something stated therein or thereon is true”.
“Attestation” is not a word that commonly crops up in transport conversations, but it has significant relevance in road haulage, especially where international road haulage journeys are concerned and particularly since the EU introduced driver attestations as a specific legal requirement for certain drivers on international journeys.
There are now, in fact, two types of attestation in current use, which may cause confusion. This article focuses mainly the second type of attestation, ie the Third Country Driver Attestation.
There are two types of attestation
The first type of attestation, commonly referred to as the “hours’ law attestation” is a Driver Attestation under Regulation 561/2006/EC, which relates to the work of drivers on international journeys that is not covered by a valid tachograph record. This document should reflect driver activities which could not, for technical reasons, be recorded by means of a tachograph. In fact, it is generally used to indicate that a driver has no record to produce on request by the enforcement authorities because, for example, he had been on annual leave, off work on sick leave, or had been driving a vehicle to which neither the hours’ law rules (under Regulation 561/2009/EC) nor the AETR rules applied. This attestation must be used in conjunction with, and in addition to, any available relevant tachograph records, ie either completed charts or digital records as appropriate.
This form of attestation should not be confused with the requirements for the second type, the “Third Country Driver Attestation”.
This type of attestation is authorised under Article 5 of Regulation 1072/2009/EC, which relates to the nationality status of employed drivers and came into effect on 4 December 2011. The purpose of this document (commonly referred to as the “third country” attestation) certifies that the driver of a vehicle carrying out road haulage operations between Member States is either lawfully employed by the EU transport operator concerned in the Member State in which the operator is established or is lawfully placed at the disposal of that operator. Normally, it should be accompanied by a valid and current work visa or permit for the individual driver.
This second type of attestation is described more fully below.
Third Country Driver Attestation
According to the EU, the impossibility of checking whether drivers are legally employed or used outside the territory of the Member State where a haulier is established has given rise to a market in which drivers from third countries are sometimes used irregularly only for the international carriage of goods outside the Member State in which the haulier employing them is established. These irregularly employed drivers are often said to work in precarious conditions and are poorly paid, which is seen as a threat to road safety. This situation, says the EU, seriously distorts competition between hauliers engaged in such practices and those that use only legally employed drivers.
Regulation 1072/2009/EC has been designed to combat such practices by enabling inspecting officers in all the Member States to check the employment status of drivers carrying out transport operations between Member States in Community-registered vehicles under the authority of a Community licence. In the UK, the relevant agency is the Vehicle and Operator Services Agency (VOSA). The Regulation helps the authorities to effectively combat the use of irregularly employed drivers and the resulting distortions of competition. Currently, the scope of the regulation is restricted to drivers from non-EU countries, but there is a suggestion in the text that its scope may be extended, after due evaluation by the European Commission, to drivers who are nationals of Member States.
An attestation for these purposes must be officially authorised by the relevant transport authority in the Member State in which the employer is registered, who holds an O-licence and a Community Licence in that country. In the UK, this authority is the Department for Transport (DfT). An application for the Driver Attestation must be made by completing the appropriate form, which is available from the DfT. The application form requires information to be completed that shows employer/operator details and driver details, including: the driver’s date and place of birth and nationality; the reference number of his or her identity papers and where and when these were issued; the driving licence number and its place and date of issue; and the driver’s National Insurance number.
It is clear that this requirement places an onus on employers to ensure that they employ only drivers who are EU nationals or who are otherwise legally authorised to be in the UK (or whichever EU Member State the operator is based in) under current immigration laws. Indeed, if a driver is a non-EU national and does not hold the correct documentation, then that driver is effectively an illegal immigrant and is likely to be sent back, post-haste, to where he or she came from, unless a successful application for asylum is made.
The style of the official attestation document can be seen in Annex III to Regulation 1072/2009/EC, but the actual document must conform with the model specification described, namely that it should be printed on DIN A4 size cellulose paper of 100 g/m² or more weight/density and in the specified colour (ie pantone pink), and must show the distinguishing sign of the Member State and contain at least two of the security features identified in Annex I to the regulation, such as:
special fibres in the paper which become visible under ultra-violet light
at least one microprint (ie printing which is visible only under a magnifying glass and cannot be reproduced by photocopiers)
tactile characters, symbols or patterns
double numbering (ie the serial number of the Community licence and of the driver attestation as well an issue number)
a security design background with fine guilloche (ie braided ribbon) patterns and rainbow printing.
It also requires the seal of the issuing authority (ie in the UK, the Secretary of State for Transport) as well as a serial number which is to be recorded in the national electronic register of road transport undertakings.
For this reason, the document must be officially supplied by the DfT and operators cannot use photocopied versions taken from the regulations.
This is unlike the hours’ law attestation document which, although it must not be modified, may be printed on company letter-headed note paper showing the company’s logo and contact details.
Driver attestations will be issued by a Member State to any haulier requesting them for each driver who is the national of a third country as described above and whom the haulier legally employs.
Driver attestations are valid for a maximum period of five years. The attestation must be produced whenever required by authorised inspecting officers.
The competent authorities of a Member State may withdraw a driver attestation where the holder:
has failed to observe the conditions in accordance with which the attestation was issued
has supplied incorrect information in relation to the data required for the issue or renewal of a driver attestation.
Misuse of a Driver Attestation may also result in temporary or permanent withdrawal of the operator’s Community licence.
The original of the attestation document must be carried by the driver on all international journeys and produced on request by enforcement authorities. A certified true copy of the driver attestation must be kept at the haulier's premises.