1. What is the Mobility Package?
The Mobility Package significantly changes the provisions related to international transport within the European Union. It consists of:
- 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, hereinafter referred to as Regulation 2020/1054;
- Regulation (EU) 2020/1055 of the European Parliament and of the Council of 15 July 2020 amending Regulations (EC) No 1071/2009, (EC) No 1072/2009 and (EU) No 1024/2012 with a view to adapting them to developments in the road transport sector, hereinafter referred to as Regulation 2020/1055;
- Regulation (EU) 2020/1056 of the European Parliament and of the Council of 15 July 2020 on electronic freight transport information, hereinafter referred to as Regulation 2020/1056;
- Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020 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, hereinafter referred to as Directive 2020/1057.
Due to the size of this publication, we will limit ourselves to the most important changes introduced by the Mobility Package.
2. Changes to the provisions concerning working time and rest periods for drivers
Changes concerning drivers’ working time and rest periods, described in this section of the article, became applicable on 20 August 2020.
2.1 Regular and reduced weekly rest
The Mobility Package introduced the rule that a driver should take at least two regular weekly rest periods or one regular weekly rest period and one reduced weekly rest period of at least 24 hours within two consecutive weeks.
However, there is an exception to the above rule. Drivers engaged in international transport may take two reduced weekly rest periods of a minimum duration of 24 hours each, one after the other. Nevertheless, both reduced rest periods shall be used outside the Member State of establishment. The provisions also stipulate that the driver should take four weekly rest periods in four consecutive weeks and at least two of them will be regular weekly rest periods.
A reduction of weekly rest period shall always be compensated to the driver. The compensation should take the form of an equivalent rest period used once before the end of the third week following that one in which the driver took a reduced rest period. The exception applies in the event that the driver has taken two reduced rest periods in a row. In this case, the next weekly rest period must be preceded by a rest period constituting a compensation for the two reduced weekly rest periods.
It should be added that, in accordance with the new regulation, the rest period starts no later than after the end of six 24-hour periods, counting from the end of the previous weekly rest period.
2.2 Destination for taking a weekly rest
Under the new legal situation, a driver can’t use the weekly rest period in a vehicle. Currently, both regular weekly rest periods and any weekly rest period of more than 45 hours used as compensation for previous reduced weekly rest periods can’t take place in a vehicle. It should occur outside the vehicle. Moreover, the place of accomodation should be suitable for each sex and equipped with adequate sleeping and sanitary facilities.
The employer is obliged to cover accomodation costs of outside the vehicle.
2.3 Return every 4 weeks
The Mobility Package imposed on the entrepreneur running a transport company the obligation to organise drivers’ working time in such a way that the driver returns to the employer’s operational centre or to his/her place of residence in every four-week period. The purpose of these returns is for the driver to take at least one regular weekly rest period in the above-mentioned places, or a weekly rest period of more than 45 hours used as compensation for a reduced weekly rest period.
The above rule has been modified for a driver who has taken two reduced rest periods in a row. He/She should return the employer’s operational centre or to his/her place of residence before the start of the nearest regular weekly rest period of more than 45 hours used as compensation.
The transport enterprise is obliged to create and store documentation confirming the fulfillment of the obligation in question. The documentation shall be made available to the control authorities whenever requested by them.
2.4 Break and drive in a crew
A driver who performs transport in a crew is entitled to take a 45-minute break in a vehicle driven by another one forming part of the crew. However, this may occur provided that the driver using the break doesn’t assist that one driving the vehicle.
2.5 Break while the driver accompanies a vehicle transported be ferry or train
The driver may also take rest when accompanying a vehicle transported by ferry or train. The provision of a sleeper cabin, bunk or couchette at the disposal of the driver constitutes the condition for taking a regular daily rest period and reduced weekly rest period in such a situation. However, this rest may be interrupted. Breaks may take place up to two times and be caused by activities lasting no more that one hour in total.
A driver accompanying a vehicle transported by ferry or train may also use regular weekly rest periods. This may occur if the ferry or train journey is scheduled for at least 8 hours and the driver has a sleeper cabin on the ferry or train.
2.6 Commuting
The Mobility Package also regulates the issue of the driver’s access to a vehicle that is located in a place other than the driver’s home or the employer’s operational centre. In such a situation, the time spent commuting doesn’t constitute either a rest or a break. However, this rule doesn’t apply when the journey is made by ferry or train and the driver has a sleeper cabin, bunk or couchette available at his/her disposal.
2.7 Right to deviate from driving time standards
The possibility of extending the daily or weekly driving time has been introduced.
The driver may exceed the daily and weekly driving time by a maximum of one hour if the excess doesn’t endanger road safety, the driver is heading to the employer’s operational centre or place of residence and intends to take a weekly rest period. However, the daily and weekly driving time may be exceeded only exceptionally. It can’t be the rule.
In certain cases, the daily and weekly driving time may be exceeded by up to two hours. This may occur provided that there are grounds for extending the driving time by a maximum of one hour and the driver takes an uninterrupted break of 30 minutes immediately before this additional driving time.
The driver is entitled to compensation for the extension of the working period in the form of an equivalent rest period. It must be used once before the end of the third week following the week in question.
The driver should properly document the extension of driving time. According to the provisions, at the latest upon arrival at the destination or stopping place, he/she should manually enter the reasons for the extension of the daily or weekly driving time on the record sheet of the recording equipment, on a printout from the recording equipment or in the duty roster.
3. Posting of drivers
As regards drivers employed in international transport, Directive 2020/1057 contains a specific regulation in relation to Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, hereinafter referred to as Directive 97/71/ EC. The provisions in question became applicable 2 February 2022.
3.1 Which drivers are considered posted and which aren’t?
In view of the new provisions, a driver isn’t considered to be posted if:
- he/she performs bilateral transport operations in respect of goods – this also includes one activity of loading or unloading in the Member States or third countries that the driver crosses, provided that he/she doesn’t load and unload goods in the same Member State, as well as a maximum of two additional activities of loading or unloading in the event that the transport operation during which no additional activities have been carried out is followed by a return to the Member State of establishment;
- he/she performs bilateral transport operations in respect of passengers – this also applies in the event that the driver picks up passengers once or sets them down once in Member States or third countries that the driver crosses, provided that he/she doesn’t offer passenger transport services between two locations within the Member State crossed – this also concerns the return journey;
- he/she transits through the territory of a Member State without freight loading or unloading and without picking up or setting down passengers;
- he/she performs the initial or final road leg of a combined transport operation in the event that this road leg on its own consists of bilateral transport operations.
On the other hand, drivers are considered to be posted workers if:
- they perform cabotage;
- they perform cross-trade carriages.
In relation to the second group of drivers, the provisions of Directive 97/71/EC, and thus the rules introduced by this directive, apply. This will be very painful for entrepreneurs running transport companies, especially in terms of remuneration. It won’t be possible to include subsistence allowances and lump sums in drivers’ salaries.
3.2 Period of posting
According to the new regulation, the posting of a driver is considered completed when he/she leaves the host Member State. It’s also stipulated that a given period of posting won’t accumulate with previous periods of posting in the field of transport performed by the same driver or by another driver, but whom he/she replaces.
3.3 Obligation to make a declaration of posting
Directive 2020/1057 imposed an obligation on the entrepreneur running a transport company to notify the posting to the competent national authorities of the EU country to which the driver is seconded. The IMI online platform constitutes the tool for implementing this obligation. The platform is common for the entire EU. Therefore, it isn’t necessary to notify a posting via country-specific platforms.
The notification should include the following data:
- the carrier’s identity – at least in the form of the Community licence number, if available;
- contact details of the transport manager or other person designated in the Member State of establishment of the enterprise to contact the competent authorities of the host Member State where the services are provided, as well as to send and receive documents or notices;ń;
- the driver’s identity, his/her home address and driving licence number;
- the start date of the employment contract concluded with the driver and the applicable law;
- the expected start and end dates of posting;
- registration numbers of motor vehicles
- information whether the transport services provided constitute carriage of goods, passenger transport, international carriage or cabotage operation.
The notification must be made at the latest at the start of the posting.
3.4 Other duties of an entrepreneur running a transport company
Another obligation imposed on the entrepreneur runnig a transport company is to provide the driver with a copy of the posting declaration submitted via IMI, as well as evidence confirming transports performed in the host Member State and the tachograph records. Documents can be in both paper and electronic form. The duty in question is accompanied by the driver’s obligation to keep the above-mentioned documents.
The entrepreneur is also required to send, after the end of posting, at the direct request of the authorities of the Member State to which the driver has been seconded, copies of evidence confirming the performance of the transport in the host Member State, tachograph records, documentation concerning the driver’s remuneration during the period of posting, employment contract concluded with the driver or an equivalent document, driver’s working time records and proofs of payment. These documents must be submitted within eight weeks from the date of making of the request via the public interface connected to IMI.
4. Cabotage operation
The Mobility Package retained the rule allowing for 3 cabotage operations within 7 days. However, the introduction of a 4-day grace period between consecutive cabotage operations in a given country constitutes the novelty. The withdrawal period shall be counted from the last cabotage operation.
It results from Article 8(2a) in Regulation (EC) No 1072/2009 that the restriction in question covers transport performed “by the same vehicle or, in the case of a combination of vehicles, the motor vehicle of the same vehicle”.
Cabotage restrictions apply from February 2022.
5. Obligation to return of the vehicle every 8 weeks
From February 2022, entrepreneurs running a transport company are obliged to organise journeys in such a way that vehicles used in international transport return to one of this enterpreneur’s operational bases no later than eight weeks after leaving it. At the same time, in recital 8 to Regulation 2020/1055, the EU legislator spitulated that the carrier should synchronise the return of the vehicles to the base with the drivers’ coming home. Indeed, it was pointed out that “This synchronisation reinforces the driver’s right to return and reduces the risk that the vehicle would have to return to the State of establishment just to fulfil this new requirement concerning establishment. However, the necessity to return to the Member State of establishment shouldn’t require a certain number of operations to be carried out in the Member State of establishment or otherwise limit the ability of carriers to provide services in the internal market.”.
6. Prohibition of making a driver’s remuneration dependent on the number of kilometres travelled
In the previous legal situation, it was prohibited to make drivers’ remuneration dependent on the distance travelled and/or the amount of goods carried. The Mobility Package extended the above catalogue. Indeed, another criterion was added: speed of delivery. According to the new wording of Article 10(1) of Regulation 561/2006: A transport enterprise can’t pay employed drivers or these ones put at its disposal any remuneration component, even in the form of a bonus or wage supplement, depending on the distance travelled, the speed of delivery or the amount of transported goods if their use may threaten road safety or encourage infringements of this Regulation.
This means that from August 2020, an entrepreneur conducting economic activity in international transport can’t make drivers’ remuneration, including bonuses and other components of salary, dependent on the distance travelled, the amount of transported goods, the speed of delivery. However, the prohibition in question isn’t unlimited. It applies if the dependance described in the provision treathens road safety or encourages infringements of the law.
7. Tachographs
The Mobility Package introduces the requirement to install second generation smart tachographs in vehicles performing international transport. They are to ensure that the vehicle is automatically recorded at the following points:
- the starting place of the daily working period,
- each time the vehicle crosses a Member State border,
- each time the vehicle is loaded or unloaded,
- every three hours of accumulated driving time,
- the ending place of the daily working period.
If it isn’t possible to record the vehicle at the aforementioned points, the tachograph shall have the possibility to record at the points nearest to them where a satellite signal is available.
The second generation smart tachograph is also expected to record whether the vehicle was used for the carriage of goods or passengers and to enable remote control by the relevant authorities.
The introduction of the second generation of smart tachographs has been spread over time. The reference point is to be the date of entry into force of the specific provisions issued by the Commission:
- within 3 years from the end of the year in which the detailed provisions entered into force, vehicles with analogue tachographs and 1st, 2nd and 3rd generation digital tachographs should be equipped with 2nd generation smart tachographs;
- within 4 years from the entry into force of the detailed provisions, second generation smart tachographs are to be installed in vehicles equipped with first generation smart tachographs.
Control authorities will have to be equipped with devices for remote reading of tachograph data within three years from the date of entry into force of the implementing provisions.
From 31 December 2024, drivers will be required to store and present the tachograph data from the current day and the 56 days preceding it for inspection.
8. Change in rules concerning transport activities in the EU
In June 2022, provisions providing for changes in the rules for conducting transport activities in the EU will come into force. The most important amendments concern carriers managing a fleet with a target total weight of up to 3.5 tonnes. The new provisions oblige them to obtain a Community licence authorising them to perform international carriages of goods by vehicles or combinations of vehicles with a total permissible weight exceeding 2.5 tonnes. It’s related to the obligation for the carriers in question to have a head office and to obtain a financial guarantee of €1,800 for the first vehicle and €900 for each subsequent one. The requirement to have a “good reputation” was also extended to them.
Moreover, it should be added that drivers of vehicles with a maximum permissible weight will be obliged to record their driving time using tachographs.
9. Legal notice
The study is a work within the meaning of the Act of 4 February 1994 on Copyright and Related Rights (OJ 2006, No. 90, item 631, consolidated text, as amended). Publishing or reproducing this study or its part, quoting opinions, as well as disseminating in any other way the information contained therein without the written consent of Crede sp. z o.o. is prohibited.
