Fabian Demicoli

Unfortunate state of play: Self-employed in mobile road transport

 Directive 2002/15/EC on the organisation of the working time of persons performing mobile road transport activities

After the rejection on 16 June 2010 by EU parliament of the European Commission proposal to exclude self-employed of the directive, the directive will fully apply to all workers and the Commission will monitor the concrete application in each member State.

 

Following the decision of the EC to withdraw its proposal, no plans are announced by the Commission to relaunch the legislative procedure with a new proposal or a new impact assessment.

Given that the rules of the 2002/15/EC directive now apply, limiting weekly work to 48 hours for all mobile workers irrespective of their employment status, the Commission is legally bound to check the implementation of the Directive and to launch infringement procedures if it is not correctly enforced. So far the only country which has enforced the inclusion of self-employed workers is Italy.

A common report will be published during the course of this year by the EC on the implementation of Directive 2002/15 EC and Regulation 561/2006 over the period of 2007-2008.

Content of the Directive 2002/15

Directive 2002/15 establishes maximum weekly working hours for workers performing mobile road transport activities. This means not only professional drivers, but also persons performing transport activities for their own account such as builders transporting building material or equipment. The application of the directive is limited by the size of the vehicle driven, which must be above 3.5 tonnes. The scope of the directive was originally restricted to employees and "false" self-employed drivers. However it contains a sunset clause according to which from 23 March 2009 the directive shall apply to self-employed drivers (Article 2).

With the aim of "ensuring the safety of transport and the health and safety of the persons involved", the directive limits the weekly working time of mobile road transport workers to 48 hours, which may be extended to 60 hours only if, over four months, an average of 48 hours a week is not exceeded. Breaks of 30 minutes must be taken at least every 6 hours. "Working time" refers to activities such as driving, loading and unloading, technical maintenance; and some administrative work directly related to the transport operation at hand (customs, police). The directive also contains provisions related to night work.

It is important to underline that this directive is complemented by other pieces of legislation establishing fixed driving time and rest and break periods (Regulation 561/2006), and ensuring enforcement through the use of the digital tachograph (Regulation 3821/85) and through specific enforcement measures (Directive 2006/22/EC).

Recall of the failed revision procedure

  • Proposal by the European Commission

 

Following an impact assessment and as foreseen in the original directive, the European Commission proposed in 2008 a revision of Directive 2002/15 which aimed to exclude genuine self-employed workers from the scope of the directive, whilst providing a more specific definition of bogus self-employed workers to improve enforcement.

  • Procedure in the European Parliament

 

The file was referred to the Employment committee of the European Parliament for review in 2009. Following a first vote in the committee calling for the rejection of the EC proposal and after the EP elections of June 2009, a new rapporteur was appointed to draft a new report on the subject. Edit Bauer (Slovakia, EPP), the new rapporteur, drafted a report supporting the Commission proposal, which was however slammed by a majority in the Employment committee and transformed into another request for rejection. Due to divisions in the EPP and ALDE groups, the call for rejection was adopted during the EP's plenary session of 16 June 2010.

  • Withdrawal of the proposal

 

Following the vote in the plenary session of the EP, the European Commission announced during the Transport Council of 24 June 2010 that it would withdraw its proposal. This means that the rules contained in Directive 2002/15, including the extension to self-employed drivers, now apply in full.

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