Advocate general's opinion
EU employers of drivers of road transport vehicles will have noted with interest the European Court of Justice (ECJ) advocate general's recent opinion that drivers cannot take their regular weekly rest periods inside their vehicles.
The extent to which sleeping in vehicles is allowed under EU law – particularly with regard to the EU Regulation on the Harmonisation of Certain Social Legislation relating to Road Transport (561/2006) – has been the subject of much debate in the road transportation industry, in which many drivers operate far from home. Sleeping inside a vehicle is allowed only if the vehicle has proper sleeping facilities and it is stationary.
However, confusion has arisen over whether:
- Articles 8(6) and 8(8) of the regulation preclude drivers from taking their regular weekly rest periods inside their vehicles; and
- certain provisions of the regulation violate the principle of legality of criminal offences and penalties as enshrined in Article 49 of the Charter of Fundamental Rights of the European Union.
Article 8(6) of the regulation provides that:
"In any two consecutive weeks, a driver shall 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. However, the reduction shall be compensated by an equivalent period of rest taken enbloc before the end of the third week following the week in question. A weekly rest period shall start no later than at the end of six 24-hour periods from the end of the previous weekly rest period."
Article 8(8) of the regulation stipulates that:
"Where a driver chooses to do this, daily rest periods and reduced weekly rest periods away from base may be taken in a vehicle, if it has suitable sleeping facilities for each driver and the vehicle is stationary."
Because Article 8(8) explicitly allows drivers to take their daily rest and reduced weekly rest periods inside their vehicles, this implies that drivers are not allowed to take their regular weekly rest periods inside their vehicles. However, this interpretation is debatable. Preliminary questions regarding the proper interpretation of the law are scheduled to be answered by the ECJ, which must now consider the advocate general's recent opinion.
The issue came before the advocate general following a dispute between the Belgian authorities and a Belgian road transport company which contested the imposition of a €1,800 fine for non-compliance with the prohibition on drivers taking their regular weekly rest periods inside their vehicles. The transport company disputed the interpretation of Articles 8(6) and 8(8) as enshrined in Belgian national law, which assumes that, pursuant to EU Regulation 561/2006, a regular weekly rest period cannot be taken inside a vehicle. The transport company claimed that such an interpretation breached the principle of legality in criminal proceedings.
The advocate general concluded that Articles 8(6) and 8(8) are to be interpreted as meaning that drivers cannot take their weekly rest periods inside their vehicles. He also found that Articles 8(6) and 8(8), read in conjunction with Article 19 of EU Regulation 561/2006, do not violate the principle of legality of criminal offences and penalties as enshrined in Article 49 of the Charter of Fundamental Rights of the European Union.
The advocate general noted that there are variations throughout the European Union as to whether Articles 8(6) and 8(8) are to be interpreted as meaning that drivers may take their regular weekly rest periods inside their vehicles. However, he said that the reference to "daily rest periods" in Article 8(8), which covers both regular and reduced daily rest periods, alongside "reduced weekly rest periods", strongly suggests that regular weekly rest periods are excluded from the article's scope.
Further, the advocate general stated that:
"It would seem that, if the EU legislature intended to cover regular weekly rest periods as well as reduced weekly rest periods in Article 8(8), it would have used the term 'weekly rest period' to encapsulate both. To interpret Article 8(8) as covering a regular weekly rest period would therefore make the wording of Article 8(8) illogical and superfluous. It would also be illogical to interpret Articles 8(6) and (8) as allowing a driver to spend regular weekly rest periods inside the vehicle under less stringent conditions than those that must be satisfied in the case of daily rest periods and reduced weekly rest periods."
The advocate general held that an interpretation of Article 8(8) to the effect that a driver cannot take his or her regular weekly rest period inside a vehicle did not contravene the regulation's definition of a 'rest' by limiting the means by which a driver may freely dispose of his or her time. The fact that Article 8(8) expressly provides for daily rest and reduced weekly rest periods implies that a driver cannot spend regular weekly rest periods inside his or her vehicle.
In summary, the advocate general proposed that Articles 8(6) and 8(8) should be interpreted to mean that a driver cannot take his or her regular weekly rest periods, as referred to in Article 8(6), inside his or her vehicle.
Although it may be several months before the ECJ reaches a decision on this issue, the court usually follows the advocate general's advice. In that event, the ECJ decision could trigger further questions on the interpretation of the weekly rest period. It is difficult to believe that obligatory rest periods could be interpreted in such a way that a driver cannot be in the vicinity of his or her vehicle at any time during his or her weekly rest period. It therefore remains to be seen how the authorities will monitor and enforce such a requirement. Ultimately, a number of issues are still unclear and will remain so until the ECJ has ruled on the dispute.
For further information on this topic please contact Annemieke Spijker or Guido de Vos at AKD by telephone (+31 88 253 5000) or email ([email protected] or [email protected]). The AKD website can be accessed at www.akd.nl.