It has already been said many times that the main purpose of the Mobility Package I was to guarantee the rights of drivers and improve their working conditions. So obviously, drivers should have also the right to choose where they wish to spend their rest time; however, the discussion of today is if this is indeed tolerated during the roadside controls.
Legal background
The enforcement of Mobility Package 1[1] has introduced complexities in navigating international transportation regulations. The interpretation of rules varies significantly from country to country, and discrepancies can emerge not just between regions but also among different enforcement authorities within a single country. Particularly, the most significant challenges arise in enforcing the application of Article 8(8) of Regulation (EC) No 561/261, which prohibits regular weekly rest periods in a vehicle, and Article 8a of the same Regulation, which requires the driver to return to his “home”; both are strongly influenced by the will of the driver.
How can we improve the working conditions of someone who does not want to return home? How should transport undertakings prove their obligations to organize the return of their driver’s at “home”? What if the driver wants to travel and explore countries during his weekly rest time?
The European Commission has provided questions and answers for more clarifications on this matter that confirm the importance of the driver’s right to his own time, but the practise of roadside controls confirms that some authorities are not following these recommendations. Indeed, it is not legally binding; only the Court of Justice of the European Union is competent authority to authoritatively interpret Union law[2].
What is this practice? In many cases at the roadside inspection authorities are issuing fines because the driver did not present any evidence that he returned home as he decided not to return. This is not a very adequate practice due to the reason that in Recital (14) of the Regulation (EU) 2020/1054 is stated that “[….] the drivers are free to choose where to spend their rest period”, so it is up to the driver to choose among the two options offered by the employer or to choose another option. However, the driver may not be obligated by the employer to choose the employer’s establishment as a place of return or decide to spend his weekly rest time inside of the cabin.
The driver should not be requested by control authorities on the road to possess such evidence, nor to possess evidence of the place where he spent a regular weekly rest or longer breaks away from the vehicle[3]. After performing a roadside check, the control authorities could request additional information on a driver’s activity to the authorities of the Member State where the road transport undertaking is established.
Also, drivers or employers can only be fined for non-compliance with the prohibition of taking the regular weekly rest (or rest of more than 45 hours taken in compensation) in the vehicle when they/their drivers are caught having a regular weekly rest inside the vehicle at the time of the control.
What should the driver do if he does not want to return “home” or go to the rest place proposed by the employer?
While the driver may choose his/her place of rest, he/she has no possibility to release the employer from its obligations to organize the work enabling the regular return to “home.” This obligation on the transport undertaking remains, whatever the driver declares, and whatever he or she makes out of it.
The driver should respond to the employer in writing about his plans. He can refuse to the employer’s request to return “home” and his will should be undoubtful. The driver then may leave the cabin and go to whatever place he chooses, but before that he has to inform the employer. After that, he needs to take out his card out of the tachograph and keep with him during the rest time. Under any circumstances he is not allowed to be in the cabin during his 45 and more weekly rest.
When the driver returns from his weekly rest either at home or any other place chosen by him, he must put his card in the electronic device and after that he must manually note his “weekly rest”.
What mistakes do the drivers make?
The first most common mistake is that the drivers do not take out their cards from the tachograph devices which may be considered that they spend the weekly rest in the cabin.
The second mistake is that even if they take out the card of the tachograph, they put it back too early without considering the time of travel. For example: The driver is in Spain on a parking lot. His son, daughter, or relative lives 1 hour away and the driver wants to spend his weekly rest there. So, he takes out the card of the tachograph and spend Friday night, Saturday night and Sunday night at his relative’s place, but early on Monday morning, he puts the cards in the tachograph without calculating the time from/to the specific place of rest. This could also be considered as infringement by the control authorities.
In the case when the driver stayed at the rest place organized by the company he is obliged to enter the travel time as “other work” or “time of availability”, if the condition allows. In all other cases when the driver is organizing his rest time and place by himself, the company does not have an obligation to organize a travel mode for his driver so automatically the travel time does not need to be logged as “other work”.
In conclusion, the employer is obliged to offer the driver a possibility of return to either his or her place of residence or to the employer’s operational center where the driver is normally based, through an appropriate organization of the work. Such organization must be actively undertaken, without request by the driver. You can read more about the necessary steps in our other article about driver’s return organization and documentation requirements. As regards the concrete place of rest, this is a matter for the driver to consider and does not require the employer nor the driver to keep any evidence.
An increasing number of transport undertakings are warning that even if they follow the rules, their drivers have been fined. We must continue monitoring this question and inform the national authorities and European Commission about these illegal cases. However, we cannot neglect the fact that companies that equip drivers with necessary documents to prove their activities have better chances to avoid penalties on the road. Moreover, western Europe countries’ authorities are against accepting drivers’ refusals and, in our opinion, violate the drivers’ right to their free time.
[1] Regulation (EU) 2020/1054 of the European Parliament and of the Council of 15 July 2020 amending Regulation (EC) No 561/2006 as regards minimum requirements on maximum daily and weekly driving times, minimum breaks and daily and weekly rest periods and Regulation (EU) No 165/2014 as regards positioning by means of tachographs. Mobility Package 1 is in force and the social provisions on driving times and rest conditions of drivers have been applying since 20 August 2020.
[2] See more on the following link: https://transport.ec.europa.eu/system/files/2022-02/qa_mobipack_part_i_en.pdf
[3] See Martinez, Agnieszka “Illegal roadside checks – passing problem or ongoing concern?” – https://truckmobility-info.com/illegal-roadside-checks/
