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HGVs parking at a rest area
HGVs parking at a rest area

Source: Fotolia / Erwin Wodicka

In July 2020, the legislative procedure at EU level on the Mobility Package Part I was successfully completed.

Mobility Package I contains numerous new rules for the posting of professional drivers, access to the market and the profession as well as for social legislation. The intention is to prepare the ground for a safer, more efficient and socially responsible road transport sector in the future. The Package also eliminates unclear rules that have resulted in different legal interpretations and enforcement practices in the individual Member States, thus providing more legal clarity across the EU.

Changes in access to the market and the profession of hire and reward road haulage since 21 February 2022:

In the field of access to the market and the profession of hire and reward road haulage, the following amendments described in detail below entered into force on 21 February 2022.

As from 21 February 2022, undertakings must organize the use of their vehicle fleet such as to ensure that vehicles that are at their disposal and used in international carriage return to one of their operational centres in Germany at least within eight weeks after leaving Germany (cf. Article 5(1)(b) of Regulation (EC) No 1071/2009). This also concerns vehicles that are at the disposal of the company on the basis of hire contract or other similar arrangements. Even if these vehicles were rented abroad but are used by a company’s place of business in Germany, they must return to Germany after eight weeks, at the latest.

A comprehensive catalogue containing questions and answers regarding the compulsory regular return of vehicles to the location of the branch can be found on the website of the European Commission.

As from 21 February 2022, hauliers are not allowed to carry out further cabotage operations, with the same vehicle or, in the case of a coupled combination, the motor vehicle of that same vehicle, in the same Member State within four days following the end of its cabotage operation in that Member State. The four-day period starts at 00:00 hours on the day after the day on which the last cabotage operation has been concluded (unloading).

A comprehensive catalogue containing questions and answers on the topic of cabotage can be found on the website of the European Commission.

As from 21 May 2022, undertakings engaged in international transport operations by means of vehicles (motor vehicles or combination of vehicles) the permissible laden mass of which exceeds 2.5 tonnes must hold a community licence in accordance with Article 4 of Regulation (EC) No 1072/2009. The prerequisite is that the undertaking must meet the conditions to be complied with in order to pursue the occupation in accordance with Regulation (EC) No 1071/2009. With regard to professional competence required in accordance with Article 8, which is generally to be proven by a certificate of professional competence (Fachkundebescheinigung) by the Chamber of Industry and Commerce, the Federal Government and the federal states have agreed that, in accordance with Article 9(2), persons who are managing a road haulage undertaking which only operates motor vehicles or combinations of vehicles the permissible laden mass of which does not exceed 3.5 tonnes can be exempt from the examination referred to in Article 8(1) upon application, if they can provide proof that they have continuously managed an undertaking of the same type for the 10-year-period before 20 August 2020. In the application procedure, applicants must provide suitable documents to prove that they meet this requirement.

Applications for the issuance of a community licence can be made to the authorities responsible under federal state law.

For purely national transport operations, a road haulage licence is still only required if vehicles (motor vehicles or combination of vehicles) the permissible laden mass of which exceeds 3.5 tonnes are used.

Specific posting regime for the road transport sector

As from 2 February 2022, the rules of the Minimum Wage Act apply in conformity with 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.

You will find all necessary information on the German customs website (German only).

In addition, please note that as from 2 February 2022, drivers must also enter in the digital tachograph the symbol of the country they enter after crossing a border of a Member State in accordance with Article 34(7) of Regulation (EU) No 165/2014 in the version amended by Mobility Package I. This entry in the digital tachograph must be made at the beginning of the driver’s first stop in that Member State. That first stop must be made at the nearest possible stopping place at or after the border. Where the crossing of the border of a Member State takes place on a ferry or train, the driver is to enter the symbol of the country at the port or station of arrival.

Social legislation in the road transport sector

The new rules in the area of social legislation have largely been applicable since 20 August 2020 already. We provide an overview of the major changes below:

Article 8 of Regulation (EG) No. 561/2006 has been amended to state explicitly and unambiguously that the weekly rest period must not be spent in the vehicle. Previously, this prohibition had not been explicitly regulated in the legal text, but had rather been implied by the provisions of Article 8, thus creating an undesirable scope for interpretation. The ECJ had already confirmed the prohibition in 2017. With the amendment, there is no longer any doubt that the regular weekly rest periods and every other rest period of more than 45 hours, which is taken to compensate a previously shortened weekly rest period, must not be spent in the vehicle or on parking areas. Instead, these rest periods are to be spent in appropriate and gender-friendly accommodation with adequate sleeping and sanitary facilities, unless the driver returns to their place of residence. The costs of such accommodation are to be borne by the employer.

Transport operators must now plan and organize the work of their drivers in such way that they can return to their place of residence or the company’s permanent establishment located in the Member State of establishment to which they are normally assigned at least once in each four-week period in order to take a weekly rest period of at least 45 hours. The company must document how it fulfils this obligation, keep the relevant documents on its premises and submit them to the competent inspection authorities upon request. This is an organizational obligation addressed at the companies. This obligation of the companies does not affect the free will of drivers. Drivers cannot exempt the company from the organizational obligation (for example by written declaration).

The obligation under the rules on access to the profession (Regulation (EC) No 1071/2009) for vehicles to return at regular intervals, starting in 2021, must be strictly separated from this organizational obligation of the companies. Companies must ensure that vehicles at their disposal used for international transport return to one of their operating centres in that Member State no later than eight weeks after leaving the Member State.

Drivers engaged in international freight transport will be allowed to take two consecutive reduced weekly rest periods outside the Member State in which their company is established. However, this only applies on condition that the driver takes at least four weekly rest periods in four consecutive weeks, two of which must be regular weekly rest periods. If two reduced weekly rest periods were taken consecutively, the next rest period must be taken before the subsequent weekly rest period as compensation for these two reduced weekly rest periods.

Improving the safety of parking spaces is also part of the Mobility Package Part I. It obliges the European Commission to ensure that professional drivers in road freight and passenger transport have easy access to information on safe and secure parking spaces. To this end, the European Commission will publish a list of certified parking spaces with the following features:

  • detection and prevention of unauthorized intrusion;
  • appropriate lighting and visibility;
  • emergency contact point;
  • gender-friendly sanitary facilities and food and beverage purchasing options;
  • communications connections and an adequate power supply.

The European Commission makes the corresponding list of these parking spaces available on its website.

  • With the first part of the Mobility Package, the EU legislator has also taken account of the fact that there may be unforeseen situations in which drivers are unable to reach the place where they plan to take their weekly rest period in accordance with the maximum daily or weekly driving time required by law. Drivers may therefore exceed the daily and weekly driving time by up to one hour in order to reach their employer’s operating centre or their own place of residence in order to take a regular weekly rest period there.
  • In exceptional cases, drivers may extend their driving time by two hours if, prior to the above-mentioned additional driving time resulting from unforeseeable situations, they have taken a continuous break of 30 minutes. This only applies on condition that they drive to their employer’s operating centre or their own place of residence in order to take a regular weekly rest period there.
  • All driving time extensions are compensated by equivalent rest breaks and are subject to documentation requirements.

Important: When applying these derogations, it must be ensured that road safety is not compromised at any time.

The rules also provide that small commercial vehicles whose maximum permissible mass including trailers or semi-trailers exceeds 2.5 tonnes and which are used for international freight or cabotage operations are also included in the scope of Regulation (EC) No 561/2006 on driving times and rest periods from 2026.

  • The Mobility Package Part I has also set the course for the future use of the smart tachograph in international road transport. The introduction of the second generation of the smart tachograph, which will also record border crossings and places of loading and unloading in the future, is intended to increase road safety, among other things by more precise positioning, and improve monitoring of compliance with binding social standards (driving times and rest periods, working time regulations, law on the posting of workers) and market access regulations.
    The amended technical specifications for the implementation of the second generation of the smart tachograph can be found in Implementing Regulation (EU) 2021/1228 of 16 July 2021 amending Implementing Regulation (EU) 2016/799 as regards the requirements for the construction, testing, installation, operation and repair of smart tachographs and their components. This implementing regulation can be accessed here.
  • The second generation of smart tachographs will be implemented gradually:

    • New vehicles are to be equipped with this technology from late summer 2023;
    • Vehicles with analogue or digital tachographs in international transport are to be equipped with second-generation smart tachographs by winter 2024;
    • Vehicles with first-generation smart tachographs in international transport are to be equipped with the second generation by autumn 2025. There are special regulations for the replacement of malfunctioning first-generation smart tachographs. These must be replaced with a second-generation smart tachograph from late summer 2023.

Here, reference is made to the questions and answers on the implementation of Mobility Package I on the website of the European Commission: