Last reviewed 22 August 2017
It is a point easily forgotten — as the increasingly febrile debate about hard and soft Brexits continues in the UK — but the EU has not stopped law-making simply because one member is leaving and the European Commission is in fact pushing ahead with ambitious programmes in a number of sectors — including road transport. In this special report, Paul Clarke examines the EU’s proposals in detail and considers the extent to which they will affect, and/or be implemented by, the UK.
Why bother with EU law?
This seems a valid question given the fact that the UK has begun the negotiations which will lead to it ceasing to be a member of the Union. However, until the end of the two-year Article 50 period allowed for those talks to take place, the UK remains a full member of the EU and must act accordingly. That means implementing any new legislation that is adopted by the EU up to 31 March 2019. While those in Parliament favouring a hard Brexit would argue that that date should see an end to the primacy of Union law, it is clear that a number of members of the Cabinet do not agree. The Chancellor, Philip Hammond, has been making a strong case for a longer transitional period during which free movement of people might continue, as would the rules of the single market for traders and, quite possibly, the jurisdiction of the EU’s Court of Justice (CJEU). Interviewed on the BBC, the Chancellor said he hoped that, in the immediate aftermath of Brexit, goods would “continue to flow across the border between the UK and the EU in much the same way as they do now”.
As to how long this proposed transitional period will last, Mr Hammond has only said that it must be completed by the scheduled date of the next general election — and that is not due until June 2022. So we could be looking at five more years in which EU regulations and directives will continue to be implemented in the UK and that is more than enough time for the proposals considered later in this article to have been adopted and to have come into force.
Will the UK stop obeying EU rules after Brexit?
There is also a further point to be taken into consideration when deciding on the relevance and importance of new European legislation: will the UK simply stop obeying EU rules when it leaves the Union? Again, hard-liners in the Government would say yes but even determined Brexiteers, such as International Trade Secretary Liam Fox, have said that the key to the swift agreement of a trade deal with the other Member States lies in the fact that the two sides already have full regulatory equivalence. In other words, the UK has enacted all the necessary rules, regulations and standards for its companies to be compatible with their opposite numbers in France, Germany or Poland.
What follows from that argument, of course, is the need to maintain that equivalence so that UK truck drivers, for example, can visit other Member States carrying goods which will be subject to the fewest possible customs checks and regulatory delays. So it is perfectly possible to argue, assuming a trade deal is agreed between the two sides, that future EU legislation will continue to be implemented in the UK. Certainly, this will be the case if, as has also been suggested, the UK agrees to accept an off-the-shelf agreement such as that used by Norway as a member of the European Economic Area (EEA).
With these possibilities in mind, therefore, it seems sensible to give further consideration to the Commission’s plans for the future of the road transport sector — starting with the package of proposals it introduced on 31 May 2017. These are now outlined below.
“Europe on the Move”
According to the Commission, Europe on the Move is a wide-ranging set of initiatives intended to: make traffic safer; encourage fairer road charging; reduce carbon dioxide (CO2) emissions, air pollution and congestion; cut red-tape for businesses; fight illicit employment; and ensure proper conditions and rest times for workers. These proposals are laid out in eight new pieces of legislation which are described in the document introducing the package — An Agenda for a Socially Fair Transition Towards Clean, Competitive and Connected Mobility for All (available at ec.europa.eu). As well as introducing Europe on the Move, this document sets out a list of other measures likely to be issued later this year and in 2018.This includes:
CO2 standards for vans and heavy-duty vehicles (HDVs)
Guidance for cities on access to urban areas for HDVs
Revision of Directive 2009/33/EC on the promotion of clean and energy-efficient road transport vehicles to encourage the use of public procurement policies to incentivise the creation of markets for innovative and low-emitting products
Revision of Directive 92/106/EEC on the establishment of common rules for certain types of combined transport of goods between Member States.
That is all for the future: the eight current proposals are the following.
COM(2017) 275 final on charging vehicles for the use of certain roads
COM(2017) 276 final on charging HGVs for the use of certain roads as regards certain provisions on vehicle taxation
COM(2017) 277 final on driving times, rest periods and tachographs
COM(2017) 278 final on the posting of drivers in the road transport sector
COM(2017) 279 final on the monitoring and reporting of CO2 emissions from and fuel consumption of new HDVs
COM(2017) 280 final on the interoperability of electronic road toll systems
COM(2017) 281 final on access to the occupation of road transport operator and to the international road transport market
COM(2017) 282 final amending Directive 2006/1/EC on the use of vehicles hired without drivers for the carriage of goods by road
What follows is a brief examination of what each of these proposals (taken in the above order) is likely to mean for operators.
Charging vehicles for the use of certain roads
The 2006 Eurovignette Directive provides the legal framework for charging heavy goods vehicles (HGVs) for the use of certain roads but does not contain elements specifically contributing to the reduction of CO2 emissions from transport. Furthermore, it only applies to HGVs, the impact of all other vehicles being left unaddressed. As the objective of the present proposal is to make progress in the application of the “polluter pays” and “user pays” principles, its scope is to be extended to include passenger cars, minibuses and vans as well as coaches and buses.
The Commission also wants to gradually reduce the disparities between different charging schemes to phase out the use of time-based user charges (vignettes) for international transport, first for HGVs and buses/coaches, then, at a later stage, for cars and vans. The possibility of exempting HGVs below 12t from road charging is also likely to be removed.
Charging HGVs for the use of certain roads
The second proposal affecting the Eurovignette Directive notes that it sets minimum levels of vehicle taxes for HGVs and specifies the detailed rules of infrastructure charging, including the variation of charges according to the environmental performance of vehicles. As the application of vehicle taxes represents a cost the industry must bear, even if tolls are levied by Member States, it has been decided that those taxes may act as an obstacle to the introduction of road tolls.
The new proposal therefore allows Member States more scope to lower vehicle taxes, namely by way of a reduction of the minima set out in Directive 1999/62/EC. This lowering would take place in five steps taken over five consecutive years (dropping by 20% each time) with the intention of providing an incentive to move to distance-based road charging through the application of tolls. The variation of charges according to the Euro emission class of the vehicle will be phased out to be replaced by charges based on CO2 emissions.
Driving times, rest periods and tachographs
The third of the eight proposals concerns a suggested amendments to the rules as regards minimum requirements on maximum daily and weekly driving times, minimum breaks and daily and weekly rest periods and as regards positioning by means of tachographs.
EC Regulation 561/2006 (the Driving Time Regulation) establishes minimum requirements on maximum daily and weekly driving times, minimum breaks and daily and weekly rest periods. It also requires use of a tachograph as the main tool for checking compliance with those requirements.
Successive EU regulations have been adopted to adapt tachographs to technological developments, the latest being EU Regulation 165/2014 on tachographs in road transport (the Tachograph Regulation). This introduced the “smart tachograph” connected to a positioning service based on a satellite navigation system.
In bringing forward this latest proposal, the Commission concedes that the existing legislation fails to address the emerging social and market challenges faced by the sector. It therefore aims to clarify and update certain provisions and to upgrade the use of current and future tachographs to ensure more cost-effective enforcement. The proposal will extend the reference period for the calculation of driving and rest time from two to four weeks. Over one month, drivers must take two rest periods of 24 hours and two rest periods of 45 hours.
The Commission has also said that there will be an obligation on transport undertakings to organise their drivers’ work in such a way that they are able to return to their home for a weekly rest at least once within three consecutive weeks. Among the changes regarding the use of tachographs is a requirement on truck drivers to manually register on the tachograph when they cross EU borders to help controllers at roadside checkpoints determine whether they are complying with the law on posted workers. At a later stage, this system will be automatic thanks to the use of GPS.
On one final point, the proposal makes clear that temporary exemptions from the rules in cases of emergency must in future be justified by Member States to the Commission. It is understood that the UK is one of a very few Member States who regularly make use of this exemption with recent examples including when there were problems with the Forth Road Bridge and during periods of heavy snow.
Posting of drivers
This involves a proposal to amend Directive 2006/22/EC as regards enforcement requirements and laying down specific rules with respect to Directives 96/71/EC and 2014/67/EU for posting drivers in the road transport sector. The Commission argues that differences in interpreting and applying Directives 96/71/EC (the Posting of Workers Directive) and 2014/67/EU (on the enforcement of that directive) to the road transport sector need to be addressed as a matter of urgency. It agrees that the posting provisions and administrative requirements the current legislation sets out do not suit the highly mobile nature of the work of drivers in international road transport. This proposal therefore lays down sector-specific rules and introduces the use of “threshold days” before Directive 96/71/EC applies to truck drivers.
It is proposed that they should be able to travel outside their home Member State and still be paid according to its rules for up to three days in a month. After that, they will fall under the rules of the country where they deliver goods including in areas such as a National Minimum Wage (NMW). The obligation for the truck company to have a contact point in each Member State where the posting is taking place will be cancelled.
Domestic operations and cabotage will be covered by NMW rules from their commencement.
Once in place, these new rules will require drivers to keep and make available, in paper or electronic form, a copy of the posting document and evidence of the transport operations being undertaken. They will also be expected to keep and make available, in paper or electronic form, copies of their two most recent monthly pay slips.
Monitoring and reporting of CO2 emissions
CO2 emissions and fuel consumption from new HDVs placed on the EU market have so far neither been certified nor monitored and reported. This proposal is therefore intended to close that knowledge gap before further proposals are issued on post-2020 emissions standards for HDVs (a Commission term for trucks and buses/coaches weighing more than 3.5t).
Electronic road toll systems
The vast majority of electronic toll collection systems used in the EU require road users to install special equipment (on-board units or OBUs) in their vehicles. While a few offer cross-border interoperability, most do not. This results in costs and burdens for transport operators, who must equip their vehicles with multiple OBUs to be able to drive unhindered in different EU countries. Directive 2004/52/EC sought to address this problem but has failed to do so and in Croatia, the Czech Republic, Germany, Greece, Hungary, Ireland, Italy, Poland, Slovakia, Slovenia and the UK, it is still the case that only national OBUs can be used to pay tolls.
This proposal, on the interoperability of electronic road toll systems and the facilitation of cross-border exchange of information on the failure to pay road fees in the Union will therefore replace and repeal Directive 2004/52/EC and aim to make electronic tolls easier to deploy and apply. It will also facilitate the wider application of the “user pays” and “polluter pays” principles by encouraging incentives for users of cleaner vehicles. A legal framework for the exchange of vehicle registration data for the purpose of toll enforcement is also proposed with a European Electronic Toll Service (EETS) providing interoperability at technical, contractual and procedural levels.
Access to the occupation of road transport operator and cabotage
This proposal concerns the amendment of EC Regulations 1071/2009 (on access to the occupation of road transport operator, or “operator licensing” as we say in the UK) and 1072/2009 (on access to the international road transport market) with a view to adapting them to developments in the sector. The first regulation 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. EC Regulation 1072/2009 lays down the provisions with which undertakings intending to operate on the international road haulage market and on national markets other than their own (cabotage) must comply.
Current EU rules mean that up to three cabotage operations can be carried out within seven days of the international delivery. The new rules (amending EC Regulation 1072/2009) will allow for any number of cabotage operations within five days of the international delivery and are aimed at tackling the problem that, in 2015 for example, 23% of all HGVs on the road in the EU were running empty.
Meanwhile, EC Regulation 1071/2009 is to be amended to extend some of its provisions to light commercial vehicles (LCVs), that is to those below 3.5t including vans. The proposal states that hauliers operating solely with LCVs will be excluded 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, although Member States will be able to apply them if they wish to do so. The requirements regarding effective and stable establishment and appropriate financial standing will however apply to such hauliers in all Member States. The proposal sets financial standing rates for vans at €1800 for the first vehicle and €900 for each subsequent vehicle (roughly £1600 and £800 at August 2017 exchange rates).
Use of hired goods vehicles
The eighth and last proposal concerns an amendment to Directive 2006/1/EC on the use of vehicles hired without drivers for the carriage of goods by road. This directive allows Member States to restrict the use of hired goods vehicles with a gross vehicle weight above six tonnes for own account operations. It also allows restrictions on the use of a vehicle which has been hired in a Member State different from the one where the undertaking hiring the vehicle is established.
The Commission argues that these restrictions limit the effectiveness of the directive and they will be removed by the amending directive in this proposal. The use of a vehicle hired in another Member State will be allowed for at least four months to enable undertakings to meet temporary or seasonal demand peaks and/or to replace defective or damaged vehicles. Current operator licensing rules in this country state that only vehicles registered in Great Britain can be specified on a licence.
“Europe on the Move” — what happens next?
All eight proposals are now with the European Parliament awaiting a First Reading and have also been sent to the EU Council of Ministers for consideration by Transport Ministers from the Member States. Leading MEPs in the Transport and Tourism Committee have been charged with preparing reports on the proposals and these will be put to the Committee for consideration later this year. Any suggested changes will then go to the full Parliament for the First Reading and, assuming agreement is reached, those texts will then form the basis of negotiations with the Council. Once both parties agree, the proposals will be adopted and published with dates set for their implementation in the Member States.
This sounds like a long process and it is. It could easily be late in 2018 before the completed legislation appears and, while those proposals which involve new regulations could theoretically come into force almost immediately, the numerous new directives will have a one or two year implementation period allowed to Member States to introduce the necessary changes into their national laws. It is likely that, as the next section explains, the Commission has a 2020 date in mind for most of these changes to start being felt on the road. If all this sounds hypothetical, it is worth remembering that, even if slightly amended, the great majority of the proposals featured in this report will be adopted. As the Freight Transport Association (FTA) said: “While the proposed legislation would be unlikely to come into force before Brexit, many of the proposals contained in the (Europe on the Move) Package will affect the practicalities of how goods will move into and out of Europe from the UK.”
Alongside the Europe on the Move proposals, the Commission has issued a document related to “a first phase consultation of the Social Partners” on a possible revision of the Road Transport Working Time Directive (2002/15/EC). The Social Partners, essentially the two sides of industry at European level, are principally the European Trade Union Confederation (ETUC) and, for employers, the European Centre of Enterprises with Public Participation (CEEP). Under the EU Treaty, they may be asked to consider bringing forward draft legislation in the employment field and, if they reach agreement, the Commission is required to ensure that their text becomes adopted legislation. Previous examples of this approach resulted in agreements on parental leave and part-time work among others. It should be noted that this is only a first phase consultation (available at ec.europa.eu) and it will be up to the Commission to decide whether it is worth taking the initiative forward.
As if all the above was not enough to contend with, the Commission followed up the Europe on the Move package with the news, in August, that it was also looking at possible changes to EC Regulation 661/2009 concerning type-approval requirements for the general safety of motor vehicles, their trailers and systems, components and separate technical units (known as the General Safety Regulation) and to EC Regulation 78/2009 on the type approval of motor vehicles with regard to the protection of pedestrians and other vulnerable road users (the Pedestrian Safety Regulation).
The General Safety Regulation covers practically all vehicle safety aspects including crash testing, safety belt restraint systems, lighting, glazing, brakes, stability control systems, child seat anchorages ISOFIX and tyre safety. The companion regulation manages the requirements for cars in terms of the protection of pedestrians and other vulnerable road users that are struck by a car on the road. There are 19 specific vehicle safety measures under consideration for the anticipated update of the two regulations. These measures would introduce new standard equipment and improved safety performance for vehicles and could become mandatory features on cars, LCVs, buses, trucks and trailers.
With regard to lorries and trailers, the measures under consideration include:
front-end design and direct vision: to protect pedestrians and cyclists involved in collisions, through blind spot camera/monitoring systems paired with detection capability of pedestrians and cyclists around the cab, to the introduction of requirements covering the direct vision of the driver
truck and trailer rear underrun protection (rear bumper): upgrading of the required bumper strength to prevent passenger cars from sliding under the rear end of trucks and trailers
truck lateral protection (side guards): significant reduction of exemptions that are currently permitted, notably for off-road vehicles.
These suggested changes are now the subject of a public consultation with the deadline for submitting comments being 22 October 2017 and with full details available at ec.europa.eu. There is however no doubt that these measures will be put forward as formal proposals (probably early next year) as the consultation makes clear that it is looking for views on the best ways of improving current vehicle safety measures, not whether they should be introduced at all. Indeed, the Commission sets a specific date in the consultation document by which it expects these measures to have implemented and introduced: 1 September 2020.
Get ready for data protection — GDPR
Not every proposal of relevance to the industry has transport in the title so another one to watch out for is EU Regulation 2016/679 “on the protection of natural persons with regard to the processing of personal data and on the free movement of such data”, more popularly known as the General Data Protection Regulation (GDPR). Available at eur-lex.europa.eu, it replaces the Data Protection Directive (95/46/EC) with the Commission arguing that something much stronger was needed to protect EU citizens from privacy and data breaches “in an increasingly data-driven world that is vastly different from the time in which the 1995 directive was established”.
EU regulations usually come into force on or about the day they are published in the Official Journal but it was recognised that companies would need more time to prepare for the impact of the GDPR so its implementation date in the UK and the other Member States is 25 May 2018. New rules will then be introduced designed to make sure that people’s personal information is protected — no matter where it is sent, processed or stored, even if this is outside the EU.
According to the UK’s independent authority set up to uphold information rights, the Information Commissioner’s Office (ICO), the Government has confirmed that the UK’s decision to leave the EU will not affect next year’s commencement of the GDPR. The ICO has also pointed out that if an organisation has previously had to comply with the UK Data Protection Act 1998 (DPA), then they can expect to have to meet the more exacting standards to be introduced next year by the GDPR. Any organisation storing personal data about people — either employees’ records or details about clients and whether this is in an automated personal data system or a set of manual files — will have to ensure that they have consent to keep and use that information.
They must also be able to show how they protect it and, crucially, must have procedures in place to act quickly if they are hit by a personal data breach. Organisations must notify the ICO of data breaches which put individuals at risk and communicate to the data subject all high-risk breaches as soon as possible (within 72 hours) so that users can take appropriate measures. Failure to comply will lead to heavy fines.
Breaches of UK data protection laws during 2016 attracted 35 fines totalling over £3.2 million: under the GDPR, that figure could be 90 times higher as it gives the authorities the right to fine up to a maximum of €20 million (just over £18 million at current exchange rates). Given the likely impact of this piece of legislation, the ICO has set up a dedicated website which provides detailed information about how the new rules will be introduced and policed.