The adoption of Mobility Package I has reinforced the need for mutual cooperation and exchange of information between Member States. Almost two years after Mobility Package provisions have entered into force, we can try to assess existing practices and identify the main challenges. In its report “Cooperation obligations and practices in the enforcement of EU rules on International Road Transport in the EU”, the European Labour Authority has questioned national enforcement agencies from Member States to share their perspective.
Enhanced cooperation between MSs
It is a common fact, that there are Member States who historically have closer ties and cooperate closely when it comes to the enforcement of Mobility Package provisions. In practice, there are 6 elements who determine the level of cooperation between Member States, such as geographical proximity, number of drivers coming from a given Member State, uniform interpretation of EU law, similar working practices, personal contacts and the existence of bilateral agreements or protocols.
In the questionnaire run by ELA several Member States reported that they have a higher level of cooperation with their neighbouring countries such as Austria, Belgium, Czech Republic, Germany, Spain, Finland, France, Croatia, Luxembourg, Latvia, Netherlands, Portugal, Poland, Sweden and Slovenia (see the table below, prepared by ELA).
Regulation (EC) 1071/2009, as amended by Regulation (EU) 2020/1055, establishes four requirements road transport operators need to comply with to be able to access the European road transport market. In practice the good repute requirement is subject to regular and effective cross-border exchanges of information. In contrary, the level of exchange of information and data related to the financial standing, professional competence, and effective establishment of transport companies between the competent authorities from different Member States is rather moderate.
As you can see in the table below (prepared by ELA), there are Member States who systematically request information about the good repute of transport operators. In 2022 France has sent 84 requests for information, Belgium- 31, Bulgaria- 30, Portugal- 27 and Germany 26.
Some Member States are already regularly using the information exchange system for the purposes of checking the good repute of transport companies, but a large majority of Member States has made limited use of such information exchanges. Ten Member States have not used it at all.
Driving and resting time
In their replies to the questionnaire Member States have confirmed, that the level of cross-border cooperation when it comes to enforcement of social rules in transport such as driving and resting time, is still low. It has been also confirmed by Member States, that control of these rules is particularly complex as there are multiple bodies dedicated to their enforcement.
As a result, transport companies are confronted with burdensome and even illegal controlling practices. Drivers are being asked for documents attesting that they have spent their regular weekly rest outside the vehicle or, that their employer has fulfilled the obligation to organize their work in such a way, that there were able to come back home after 3 (or 4) weeks. It has been already confirmed at various occasions, as well as via the European Commission Q&A, that such documents should be checked at the premises. Unfortunately, due to lack of cooperation between Member States, some countries enforce these provisions on the road, which is not in line with EU law.
Some Member States have assigned the verification of compliance with these rules to several authorities and bodies within the Member State. You will find below few examples, quoted in the ELA report:
- In Spain, the transport inspectorate is responsible for roadside inspections, while the labour and social security inspectorate is responsible for inspections at the premises of the undertaking. We may argue, that this is the case in a number of Member States.
- In the Netherlands, the Environment and Transport Inspectorate is responsible for verifying the driving and rest times, the duty roster and the return of driver to their place of residence every four weeks and it can conduct roadside checks and checks at the premises, while the labour inspectorate is responsible for the enforcement of general labour legislation and for inspections at the premises of the undertakings.
- In Germany and Latvia, the enforcement agencies conducting the checks are not necessarily those that will exchange the information and data with the enforcement agencies in the other Member States.
This complexity and lack of exchange of information between Member States with regards to enforcement of driving and resting time rules is confirmed by practical experience. In our recent article we have described the situation in France.
One of the most recurring challenges for Member States’ enforcement agencies is the determination of the social security legislation applicable to international road transport drivers together with the establishment of their employment status. This is especially challenging and complex in the road transport, where drivers work simultaneously in various Member States.
Based on the replies received from Member States, ELA has concluded that “(…) pursuant to Articles 5, 11 and 12 of Regulation No 1071/2009 and Article 4 of Regulation No 1072/2009, a Community licence for road transport operations constitutes irrefutable evidence of the existence of an effective and stable establishment in the Member State which issued the Community licence, and, therefore, of that company’s registered office in that Member State for the purposes of Article 13(1) of Regulation No 883/2004. Based on this assessment, enforcement agencies in some Member States deduce that the drivers are affiliated with the social security system of the country where the company is established where they are working simultaneously in different Member States.”
All national representatives taking part in the ELA questionnaire stated, that they use EESSI (Electronic Exchange of Social Security Information) for the exchange of information between authorities on social security matters
In this context, you may also want to consul tour article about the obligation to keep A1 form in the vehicle.