RECOMMENDATION FOR SECOND READING on the Council position at first reading with a view to the adoption of a directive of the European Parliament and of the Council laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector and amending Directive 2006/22/EC as regards enforcement requirements and Regulation (EU) No 1024/2012

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the Council position at first reading with a view to the adoption of a directive of the European Parliament and of the Council laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector and amending Directive 2006/22/EC as regards enforcement requirements and Regulation (EU) No 1024/2012  

(05112/1/2020 – C9‑0106/2020 – 2017/0121(COD))

(Ordinary legislative procedure: second reading)

The European Parliament,

– having regard to the Council position at first reading (05112/1/2020 – C9‑0106/2020),

– having regard to the reasoned opinion submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the Senate of the Republic of Poland, asserting that the draft legislative act does not comply with the principle of subsidiarity,

– having regard to the opinion of the European Economic and Social Committee of 18 January 2018[1],

– having regard to the opinion of the Committee of the Regions of 1 February 2018[2],

_ having regard to the opinion of the Commission (COM(2020)0151),

– having regard to its position at first reading[3] on the Commission proposal to Parliament and the Council (COM(2017)0278),

– having regard to Article 294(7) of the Treaty on the Functioning of the European Union,

– having regard to the provisional agreement approved by the committee responsible under Rule 74(4) of its Rules of Procedure,

– having regard to Rule 67 of its Rules of Procedure,

– having regard to the recommendation for second reading of the Committee on Transport and Tourism (A9-0114/2020),

1. Approves the Council position at first reading;

2. Notes that the act is adopted in accordance with the Council position;

3. Instructs its President to sign the act with the President of the Council, in accordance with Article 297(1) of the Treaty on the Functioning of the European Union;

4. Instructs its Secretary-General to sign the act, once it has been verified that all the procedures have been duly completed, and, in agreement with the Secretary-General of the Council, to arrange for its publication in the Official Journal of the European Union;

5. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

SHORT JUSTIFICATION

1. The international road transport market

In the road transport sector, the Union social rules should contribute to achieving the policy objectives of improving drivers' working conditions, ensuring fair competition between road transport companies and enhancing road safety for all road users.

The key social rules applying to road transport include provisions on the organisation of drivers' working time set out in Directive 2002/15/EC[4], minimum requirements for enforcement set out in Directive 2006/22/EC, rules on driving times, breaks and rest periods under Regulation (EC) No 561/2006[5] and provisions on posting of workers established in Directive 96/71/EC[6] and the enforcement Directive 2014/67/EU[7]. These legal acts are part of a wider effort to improve the working conditions of drivers, ensure fair competition between operators and improve the safety of European roads, as well as to ensure a balance between the drivers' social protection and operators' freedom to provide cross-border services. 

 

2. The Commission proposal

On 31 May 2017, the Commission adopted “Mobility Package I” with the aim to ensure fair competition, simplify existing rules, preserve the EU internal market and ensure the rights of workers in this sector. As part of this first Mobility Package, the Commission proposed to establish specific rules for posting in road transport.

 

The objectives of the Commisison proposal is to ensure proportionate and fit-for-purpose application of the posting rules and to improve enforcement and render administrative cooperation between Member States more structured and efficient.

 

3. Interinstitutional negotiations

Following the adoption of Parliament’s first reading position on 4 April 2019, interinstitutional negotiations (aimed at an early second reading agreement) took place, from October to December 2019, under the Finnish Presidency of the Council. After four rounds of trilogues, some of them jointly, Parliament’s negotiating team reached a provisional agreement with the Council Presidency during the last trilogue that started on 11 December 2019.

The text of the provisional agreement was presented to the Committee on Transport and Tourism (TRAN) and confirmed on 21 January 2020. On the basis of the Committee’s approval, the Chair of the TRAN Committee, in her letter to the Chair of the Committee of Permanent Representatives (COREPER I), indicated that she would recommend to the Plenary to approve the Council’s position without amendments, provided that it is in conformity with the provisional agreement reached between the two institutions. Following legal-linguistic verification, the Council on 7 April 2020 (by written procedure) formally adopted its position in accordance with the provisional agreement.

 

4. Main elements of the agreement

The overall agreement that Parliament reached with the Council further strengthened the proposal in order to ensure balanced conditions for fair competition and rigorous enforcement. In particular, the following was achieved:

Exemptions from the posting regime for workers engaged in international road transport

Key elements of the agreement concern the introduction of an exemption from general posting rules owing to the high degree of mobility, and the scope of that exemption.

Exemptions from posting rules relates in particular to "bilateral transport operations" both in goods and passenger transport, and entail a very limited flexibility for additional carriage-related stops.  Furthermore, it is clarified that international carriage in transit across the territory of a Member State does not constitute a posting situation. Clarifications are also made for combined transport. Other transport operations, including cabotage operations, constitute posting situations.

Although the Council proposed to further extend the exemption to own-account operations, the Parliament successfully defended the limitation of exemptions to to the situation where a service contract exists between the employer sending the driver and a party operating in the host Member State.

In addition, it is clarified that interrupted presences of a driver in a host Member State do not add up to a long-term posting situation.

Third-country operators

The Council accepted the Parliament’s view on third-country operators to ensure that reinforcing posting rules for EU drivers would not lead to a competitive advantage for operators from third countries having access to the EU's road transport market.

According to Article 1(4) of Directive 96/71/EC, undertakings established in a non-member State must not be given more favourable treatment than undertakings established in a Member State. It was confirmed that principle should also apply with regard to the specific rules on posting of drivers. Furthermore, Member States must respect their obligation not to discriminate against Union undertakings, including when agreeing conditions for access to the Union market within ECMT. Union should also negotiate within AETR agreement with the aim to align it with the new control tools (smart tachographs).

Administrative requirements for posting, control and enforcement

The transport operators will be able, and obliged, to use the Commission's Internal Market Information (IMI) System for sending posting declarations and requested information. This harmonised procedure will make self-standing national information systems redundant.

As regards control provisions a distinction is made between control at the roadside and control after the posting. Driver's employment contract and payslips may be requested from the transport operator directly, after the posting. In the after-posting control phase, the IMI system will be the central communication tool for the transport operator, and a Member State has the opportunity to involve social partners.

The Council accepted Parliament’s requirement to lay down penalties against infringing rules of the lex specialis, and to sanction actors of the logistics chain if they know or ought to know about the infringements. Finally, the Council also accepted a provision on "smart enforcement", obliging Member States to embed the control of posting rules within an overall control strategy.

Transparency on terms and conditions of employment

The Council accepted the Parliament's request for a special rule on the host Member State's duty to provide transparency about its terms and conditions of employment, including those determined by certain collective agreements.

Incorporating Directive 2002/15/EC into enforcement standards for social legislation

Directive 2006/22/EC introduced Union standards for the control and enforcement of rules relating to driving time, breaks and rest periods, and of rules on tachographs. However, it excluded Directive 2002/15/EC from its scope. The agreement incorporates several aspects of that Directive, such as: the national checking systems, the minimum number of checks, the national risk rating systems, or information exchange.

Reviewed enforcement standards for social legislation

Two changes were made to improve the risk rating system: first, the Commission will introduce a common formula for the risk rating of an undertaking, and, second, the national information on risk rating will be available to control authorities throughout the EU, including in the context of carrying out roadside checks.

Empowerments to the Commission

The agreement contains two empowerments for delegated acts in respect of updating Annexes, and three new empowerments for implementing acts, namely on a common formula for risk rating, on a common approach to the recording and controlling of periods of 'other work', and for developing the functionalities of the IMI communication tool to be used for posting declarations.

Transposition and review

Member States shall transpose the Directive within 18 months after entry into force. A Commission evaluation of the implementation of the Directive, and in particular of the special provisions on posted drivers, is scheduled for the end of 2025.

5. Recommendation

The Rapporteur believes that the compromise reached represents a balanced result. As Council’s position is in conformity with the provisional agreement reached during the interinstitutional negotiations, the Rapporteur recommends endorsing it without amendments.

PROCEDURE – COMMITTEE RESPONSIBLE