Last reviewed 28 July 2021
While increased paperwork and border delays are among the most pressing concerns faced by UK hauliers since leaving the EU, the changes made necessary by the UK-EU Trade and Cooperation Agreement (TCA) are still becoming apparent. In the most recent example, the Department for Transport (DfT) has issued a call for evidence ahead of introducing further rules from the EU Mobility Package for those operating goods vehicles between the UK and EU.
How does this affect hauliers?
In July 2020, the EU adopted certain items of legislation known together as the EU Mobility Package and consisting of:
two Regulations, one updating the rules on access to the profession and to the market (2020/1055) and the other relating to driving times, rest periods and tachographs (2020/1054); together with
a Directive (2020/1057) strengthening the rules on posting drivers in the road transport sector.
While the UK has then stepped away from the application of EU legislation, the negotiations that led to the TCA led to aspects of the EU Mobility Package being included in its terms and these are at the heart of the new announcement by the DfT.
Its call for evidence, full details of which can be found — here, thus explains that the UK has agreed to implement elements of the EU Package. Specifically, it will introduce changes in line with the EU legislation in two main areas: (1) posting of drivers and some HGV operator licensing changes (in February 2022); and (2) operator licensing (in May 2022).
Posting and cabotage
A “posted worker” is an EU term meaning a worker who, for a limited period, carries out work in the territory of an EU state other than the state in which they normally work. In this context, the term relates to procedures specific to goods vehicle drivers in the context of commercial road transport. The TCA lays down that UK goods vehicles (subject to other conditions) may be used for bilateral transport from the UK to the EU and between the UK and other countries across the EU. The posting changes are not applicable to any of these journeys nor to unladen movements of goods vehicles.
Where the new rules do apply is with regard to UK-operated cabotage (transport of goods or passengers within the same country by a transport operator based in another country) in the EU and international transports where goods are loaded and then unloaded in the Union. These operations are limited to a combined maximum of two by the TCA before UK goods vehicles depart back to the UK, with cabotage also being subject to other restrictions.
Internal Market Information System (IMI)
From 2 February 2022, operators planning to operate a goods vehicle on a journey within the EU will need to post information about the driver and the planned journey in advance, using an EU-wide IT system which the UK will also be using in order to reduce duplication for businesses. In addition to the information on the driver and the journey being undertaken, countries where goods are loaded or unloaded may also request further information about the transport operation being made.
For UK operators to maintain access into the EU, the following information will need to be entered into the Internal Market Information System (IMI) currently being developed by the European Commission for these purposes:
the identity of the operator, at least in the form of the number of the valid licence where this number is available
the contact details of a transport manager or other contact person in the UK to liaise with the competent authorities of the EU member state (or states) in which the services are provided and to send out and receive documents or notices
the identity, the address of the residence and the number of the driving licence of the driver
the start date of the driver’s contract of employment, and the law applicable to it
the envisaged start and end date of the posting
the number plates of the motor vehicles.
In addition, drivers must carry a physical or digital copy of this information.
The most significant change that operators will see in May 2022 is an expansion in the goods operator licensing regime to include vehicles used for hire and reward that weigh more than 2.5 tonnes and up to 3.5 tonnes (including when used in combination with a trailer). This change will bring vehicles such as vans used by couriers and delivery services internationally into the scope of operator licensing for the first time. It is worth noting that, if a journey starts and ends in the UK and transits through the Republic of Ireland, it counts as an international journey.
The DfT emphasises that there is no need to worry if you are only using vans within the UK. It notes that the UK could introduce the EU’s changes into domestic operations but has decided not to in the short term, whereby, “…any expansion in the scope of these rule changes is [initially] being confined to licensing for international operations…” — suggesting there may be further changes ahead, subject to wider consultation.
Own account operations
The above changes do not affect those who drive light goods vehicles (LGVs) internationally on a non-commercial basis or in connection with a business for which road transport (on own account operations) is not the main operation. The DfT points out that determining whether an operation is for own account operations is ultimately for a court to decide but, based on previous case law, it offers some guidance. Answering yes to any of these questions would, it suggests, indicate that the operation of carrying goods was “for or in connection with any trade or business” or for “hire and reward”:
is the transport of the goods part of the business?
does the operator hold, and rely on when carrying those goods, a type of insurance policy that covers carriage of goods for reward?
does the carrying result in payment, direct or indirect, which benefits the owner or user of the vehicle?
New rules for LGVs
Any operator of HGVs will be familiar with the operator licensing requirements that will now apply to smaller vehicles. These are:
having a stable establishment in the UK
those in charge being of good repute
secure financial standing (access to a specific amount of funds depending on the size and composition of the fleet)
professional competence — a qualified or exempt transport manager.
The main difference will be a lower level of financial standing related to the operation of LGVs. Where the requirement for operators of HGVs is £8000 for the first and £4450 for each subsequent vehicle, the equivalent figures for LGV operators will be £1600 and £800.
As with HGV operators, those using smaller vehicles must also keep them safe and in good condition at all times. They will need to retain records of all safety inspections and maintenance undertaken, including by a third-party maintenance contractor, for a minimum of 15 months. They will also be required to apply for a standard international licence. For those who only operate vehicles at or below 3.5 tonnes, this licence will be weight-restricted by placing a condition on the licence, under section 5(2) of the Goods Vehicles (Licensing of Operators) Act 1995.
The TCA also includes an exemption from requirements for a standard international licence (and hence UK Licence for the Community) for operators transporting their own goods. The UK (in both Great Britain and Northern Ireland) requires most of these “own account” operations using HGVs to have a “restricted licence” which is a UK, not EU, requirement. There are no plans to extend UK restricted licences to cover LGVs — whether they are used in the UK or for international journeys.
The Driver and Vehicle Standards Agency (DVSA) currently focuses its resources on HGV compliance, safety and roadworthiness. Under the proposed new requirements, the DfT is considering giving the Agency broader powers to apply to all LGVs. Extending these powers will require changes to the primary legislation and it will not therefore happen in the near future.
The TCA includes transitional arrangements exempting people with substantial relevant experience in the operation of LGVs from requiring a Transport Manager Certificate of Professional Competence (TM CPC) qualification for a period of time. Individuals must declare that they have continuously managed LGV vehicles for 10 years prior to 20 August 2020 and that they will only be managing vehicles that do not exceed 3.5 tonnes.
Subject to views and evidence provided during this consultation, the DfT plans to issue such people with a limited validity acquired rights certificate, allowing them to manage LGVs for a transitional period, until 20 May 2025. This would, it suggests, give sufficient time for the individuals concerned to obtain the TM CPC qualification. Any person wishing to remain within the industry after this time will be required to have gained the relevant qualification.
When reviewing an HGV operator licence application, Traffic Commissioners are required to be aware of the nature and use of any other land in the vicinity and any effect which the use as an operating centre has or would be likely to have on the environment of that vicinity. Applicants must advertise their intentions in a local newspaper to allow possible objections.
This is an area where the DfT would particularly welcome comments and evidence as it does not currently intend to extend these requirements to operators of LGV fleets. This would, it argues, represent an added significant burden for operators with vehicles that do not lead to the level of disruption caused by HGVs.
What happens next?
Anyone wishing to contribute views or evidence to this consultation has until 24 August 2021 to do so and details of how to submit comments are included in the consultation document — here.
The information gathered through this process will then inform the DfT’s detailed impact assessment about the changes caused by the implementation of the Mobility Package in the UK. Legislation will then be drafted and there will be a further short consultation published to allow interested parties to comment on these final proposals and recommendations.
Future planned changes — tachographs
Looking further ahead, and not under consideration in this consultation, it is worth noting that, from 1 July 2026, the EU Mobility Package will require the fitting and use of tachographs in LGVs and the recording of driving and working time in compliance with the EU drivers’ hours rules.
This applies to vehicles, as described earlier, that are used for the transport of goods on international journeys with a maximum permissible mass between 2.5 and 3.5 tonnes (including any trailer, or semi-trailer).
Exemptions will apply where the goods are not being transported for hire or reward (for example, parcels transported by a courier company) but on the basis of the own account of the company or the driver (when the vehicle is only carrying goods in connection with your own business) or where driving does not constitute the main activity of the person driving the vehicle.