Last reviewed 4 March 2016
Regulation 3821/85/EEC, the regulation covering the recording of drivers’ hours and the fitment and use of tachographs, has finally been repealed and replaced by new EU Regulation 165/2014. As this is a complete repeal and replacement of Regulation 3821/85 much of the detail is unchanged but there are some significant new provisions which Richard Smith outlines below.
The companion regulation on drivers’ hours (Regulation 3820/85) was replaced some years ago by Regulation 561/2006/EC but the new regulation also makes some amendments to that. Some provisions of Regulation 165/2014 have already been in force for a year but the remainder took effect from 2 March 2016.
Phasing in of Regulation 165/2014 — exemptions from use of tachographs
The first provision in EU Regulation 165/2014 to come into effect (from 2 March 2015) was that concerning exemption from use of tachographs. Certain vehicles technically within scope of the EU drivers’ hours already enjoyed exemption from the rules on journeys of 50km or less but this distance was increased to 100km. The vehicles in this exemption category are:
vehicles or combinations with a maximum weight of 7.5t
used to carry materials, equipment or machinery for use by the driver in the course of his or her work, where driving the vehicle is not the main activity
used to carry goods and propelled by natural or liquefied gas or electricity
vehicles used to carry live animals from farms to local markets, or from markets to local farms or slaughterhouses.
Drivers of such vehicles on these journeys, therefore, do not have to comply with the EU rules on drivers’ hours and the vehicles do not have to be fitted with tachographs. British Domestic Rules, however, still apply.
In parallel with this, the exemption from the requirement for a Driver Certificate of Professional Competence (CPC) has also been increased from 50km to 100km where relevant.
Fourth generation tachographs
The bulk of the regulation concerns the specification for what amounts to a fourth generation of the digital tachograph, the so-called “smart” tachograph.
Smartness in this case refers to three aspects not previously incorporated into tachographs. These aspects are summarised below and in further detail in the article on Forthcoming changes to digital tachographs — the “smart” tachograph, written by James Backhouse and Andrew Woolfall.
Position recording. The tachograph is required to record the position of the vehicle automatically via a global navigation satellite system at the place where the daily working period starts and where it finishes. It must also record the position after every three hours of accumulated driving time. Only positioning services that are free of charge may be used and no other position data may be permanently stored in the tachograph. See also Automated recording of precise location in Forthcoming changes to digital tachographs — the “smart” tachograph.
Remote communication. Tachographs must be able to communicate remotely to the authorities while the vehicle is in motion. This is to enable targeted roadside checks for potential offences and data may only be transmitted when requested by the enforcement agency, ie it will not be continually broadcast. See also Roadside interrogation of the tachograph.
Intelligent transport. Notwithstanding the restrictions on the use of tachograph data outlined in the two preceding paragraphs, the data may be communicated to an external device after verifiable consent of the driver. This could, for example, enable remote monitoring of the speed and location of the vehicle to facilitate real-time warnings of traffic delays or re-routing by the operator. See also Intelligent transport systems.
While EU Regulation 165/2014 applies fully from 2 March 2016, the foregoing “intelligent” aspects of tachographs will be subject to implementing Acts published by the European Commission regarding the detailed requirements and principles and will not be required until 36 months after the entry into force of the relevant implementing Act — in other words, 2 March 2019 is the earliest date when “intelligent” aspects of the tachograph can be fitted to vehicles: this can only be confirmed once the Acts have been published. Since the necessary details have not yet been published, it is not possible to say when tachographs including such features will be required to be fitted to new vehicles but it is at least three years away.
Furthermore, once tachographs enabled for remote communication with the enforcement agencies are required to be fitted, Member States will have a further 15 years to equip those agencies with the necessary equipment. While this does mean that vehicles used on international operations will have to be fitted with such tachographs (retrofitted if necessary), the Department for Transport’s view is that since this requirement is unlikely to come into effect until at least 2034, the impact will be minimal.
For obvious reasons, a driver may hold only one driver card at a time and in order to ensure this, Member States must maintain an electronic register of cards issued. The electronic registers of the various Member States must be interconnected and when issuing, renewing or replacing a driver card, the Member State concerned must verify through the register that the driver does not already hold another valid card.
The preferred method of interconnection of the registers is the TACHOnet system and if Member States choose to adopt some other system it must enable exchange of data through TACHOnet. The Implementing EU Regulation 2016/68, which includes the full specification of the system and the data that must be exchanged, has already been published and Member States must comply by 2 March 2018.
Form of attestation
Certain countries have required drivers to carry a form of attestation to account for activities during periods while away from the vehicle and tachograph records are not made. Such periods might include holidays and other periods when no driving was undertaken, eg the driver was employed on other duties. Decision 2009/959 of the European Commission established a form of attestation available for use in such circumstances but EU law has never required that such a form must be used.
Article 34 of Regulation 165/2014 requires that in such cases the information must be entered on the driver card using the manual entry facility on the tachograph and specifically states that “Member States shall not impose on drivers a requirement to present forms attesting to their activities while away from the vehicle”. To that extent, the form of attestation may be considered redundant. It might, however, be a good idea to continue to provide such attestations for the short term, at least for journeys to those countries that have been known to ask for them.
The form of attestation with regard to drivers’ activities must not be confused with the driver attestation required to be carried by drivers who are not nationals of a Member State or long-term residents. This is still a requirement under Regulation 1072/2009/EC.
Responsibilities of operators
Regulation 165/2014 makes it clear that it is the responsibility of the operator to ensure that drivers are properly trained and instructed in the use of tachographs and that they are liable for any infringements committed by their drivers. However, the UK will make use of the derogation available to continue the current practice that operators will only be liable if they have infringed one or more of their own primary obligations.
For the operator and the driver in the short term, therefore, Regulation 165/2014 will have little or no effect on the current situation.
In the longer term, new specification tachographs will be required to be fitted to all vehicles in scope but this will be covered by the normal vehicle replacement cycle.
Any possibility of the need for retrofitting of new tachographs to existing vehicles is most unlikely due to the timescale involved and the economic life of such vehicles.