7th Symposium of Lawyers - Alessandro Pesce 1

“Diversity of controls and sanctions in goods road transport: helping your hauliers through the maze of unharmonised applications”

7TH LAWYERS’ SYMPOSIUM - ST. PETERSBURG
30 APRIL 2008
“THE LEVEL OF HARMONISATION OF INSPECTION AND SANCTIONS POLICIES FOR ROAD CARRIERS TRANSPORTING GOODS BY ROAD”
Rapporteur: Mr Alessandro Pesce (Italy)

Inspection and sanctions policies concerning the employment conditions for drivers

Overview of the applicable national and international regulations

1 - European regulations are mainly based on EC Regulation No. 561/2006 of 15 March 2006, relating to the harmonisation of certain provisions of social legislation in the field of road transport, which amended EEC Regulation No. 3821/85 and EC Council Regulation No. 2135/98 relating to inspection provisions in the field of road transport. Regulation No. 561/06 applies to road transport carried out in the European Community and transport between the European Community, Switzerland and countries which are party to the agreement on the European Economic Space. It sets rules relating to driving periods, the observance of which is checked by a digital tachograph, a device specifically designed to record breaks and rest times.

At national level, the Ministerial Decrees of 31 October 2003 (No. 361) and of 11 March 2005 (amended by the Ministerial Decree of 21 February 2006) integrated European legislation concerning the implementation of the digital tachograph, indicating the procedures and conditions for the issuing of authorisations for the device and tachograph cards.

2 - The employment conditions for drivers and the working schedules that they must comply with are indicated in EC Directive 15/2002 relating to the organisation of the working time of persons performing mobile road transport activities, which Italy has executed via Legislative Decree No. 234 of 19 November 2007, which has been in force since 1st January 2008.

This directive sets the maximum weekly working time as forty-eight (Art. 4), whilst also laying down a ban on working for more than six consecutive hours without taking a break (Art. 5). The work schedule must be interrupted by a break lasting at least thirty minutes when the total number of working hours is between six and nine hours, and one lasting at least forty-five minutes when the total number of working hours exceeds nine hours. Art. 3 of the Directive provides a definition of the work schedule, according to which the work time includes each period in-between the start and end of the work during which the mobile worker is at the disposal of the employer whilst carrying out his duties and activities, or in other words the time devoted to all road transport operations, including driving, loading and unloading, helping passengers to get in and out of the vehicle, and cleaning and technical maintenance of the vehicle, along with every other operation intended to ensure the safety of the vehicle, its load and its passengers, and every other operation intended to fulfil legal or regulatory obligations directly relating to the specific transport in progress, including administrative formalities with the police and customs authorities.

What is excluded from the work time are the break times referred to in Article 5 of the Directive, or in other words intermediate rest periods lasting thirty or forty-five minutes depending on whether the total number of working hours is between six and nine hours or exceeds nine hours, and the so-called “availability time”, during which the driver, even though he is not obliged to remain at the worksite, must be available in order to respond to any calls requesting him to undertake or resume driving or do other work.

Devices to have on board the vehicle in the case of a check
3 – As far as the devices that the driver must have on board the vehicle are concerned, EC Regulation 2135/98 of 24 September 1998 introduced the digital tachograph. This Regulation established that from May 2006, all newly registered vehicles intended for goods transport must be equipped with a digital tachograph, which ensures greater reliability and fewer risks of falsification. Use of the new instrument is based on four cards: the driver’s card, the control card (for the bodies responsible for road checks); the company card, and the workshop card. In particular, the key points of this legislation can be summarised as follows:
a) Obligation to have the device fitted: All vehicles intended for transporting goods and people that have a maximum permitted weight exceeding 3.5 tonnes must be fitted with the tachograph device; buses intended for bus service lines, vans and buses assigned to Public Administrations are excluded;

1. Obligation to provide the proper functionality: The employer is just as obligated as the driver to check the efficiency and functionality of the device both at the start of the journey and during the journey. In particular, the employer must prevent the vehicle from going out whenever it has been confirmed that the tachograph is working inefficiently or, if the driver confirms this during the journey, he must indicate the driving and rest times on the back of the registration sheet for the device;
2. Total ban on falsifications and alterations to the tachograph capable of deceitfully modifying the device’s functionalities in order to falsify registration details.

Inspection bodies
4 - The inspection bodies which are intended to check compliance with the provisions relating to the working schedule and rest times, and check the digital tachograph’s functionality are the Police bodies indicated in Art. 12 of the Highway Code (Legislative Decree 285/92), namely the Polizia di Stato, the Carabinieri and the Guardia di Finanza.
Sanctions applicable and the people sanctioned
5  – The Berlusconi Government introduced a special inspection system for the behaviour of both public and private-sector drivers with Legislative Decree No. 151 of 27 June 2003, which became Law No. 214 on 1st August 2003. Every driving licence is issued with 20 points which can be deducted in the event of an infringement and depending on the seriousness of it, in addition to ordinary sanctions applied. This system also applies to drivers with a driving licence issued by a foreign State who commit an infringement in Italy. The number of points deducted will be recorded in a special section of the Drivers’ Civil Status Register held by the Road Transport Department at the Ministry of Infrastructures and Transport. Once your 20 points have been used up, measures will be taken to prevent you from driving. If the driver loses 20 points in a single year, he will no longer be allowed to drive in Italy for a two-year period; if he loses them in two years, he will no longer be allowed to drive in Italy for a one-year period; if he loses them over a period of two to three years, he will no longer be allowed to drive in Italy for a six-month period.

In particular, if the tachograph shows that the driver is exceeding the driving schedule or is not following the break and rest periods, or if he does not have a copy of the service schedule, he will be punished by having two points taken off his driving licence, in addition to pecuniary penalties which the employer is jointly required to pay (Art. 174 of the Highway Code).

In the cases referred to, in addition to the application of administrative pecuniary penalties, the inspection body will order him to stop driving the vehicle until he has completed the break and rest periods, indicating the time at which he can resume driving on the ticket. If he drives whilst subject to a ban, he is punished with a harsher administrative pecuniary penalty and by immediately having his road licence and driving licence confiscated.

A driver who drives a vehicle without a tachograph or one which is fitted with a malfunctioning tachograph is subject to pecuniary penalties, in addition to the removal of ten points from the driving licence and its suspension for a period of time ranging from 15 days to 3 months.

When the device has not been put in order in spite of the parties involved having been informed to do so within a ten-day period and the vehicle is still being driven on the road, it will be taken off the road for one month. If the driver and the licence or permit holder are not the same person, the ten days take effect from the date on which notification of a ticket is received.

Avenues for appeal and timeframes
6 – In relation to the sanctions, the law makes provision for the possibility of lodging an appeal with the Prefect of the locale where the infringement was committed within 60 days of confirmation of the infringement or of notification of the ticket, in accordance with Art. 203 of the Highway Code. Otherwise, it will be possible to lodge an appeal with the competent Justice of the Peace depending on the locale where the infringement was committed, and even in this case the timeframe laid down is 60 days counting from the date on which notification of the ticket was received or on which the ticket was contested.

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