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Attestation of Activities

Mike Grant
Mike Grant
Posts: 142

Sections of the most recent EU Regulation on drivers’ hours records (EU 165/2014) took effect from 2 March 2015 and in Article 34(3) it states that “Member States shall not impose on drivers a requirement to present forms attesting to their activities while away from the vehicle”.

This has area been a frequent past target for exam questioning.

I note that the course notes produced by "the market leader in the supply of training material for both freight and passenger Certificates of Professional Competence" have not been revised to report this change and I hope that the issue will not feature in the next exam round.  If it does, candidates must not be disadvantaged for correctly knowing the current legal circumstances.

Replies

ovlov man
ovlov man
Posts: 10

back again - I have had a reply from the EU which is below, as you can see from the final paragraph they're got to review this section by end of 2016 so no doubt we'll see further changes. Keep them forms to hand!

 

Thank you for your query. Indeed the issue of recording and controlling activities of a driver when he was away from the vehicle has become a topical issue since entry into force of Article 34 of Regulation 165/2014.  As we observed a variety of interpretations and at least two main contradictory enforcement approaches we decided to issue a clarification note.

 

 

 

The Commission services standpoint is following:

 

 

 

Legal frame

 

In order to ensure more rapid, effective and comprehensive controls of compliance with the provisions of Regulation (EC) No 561/2006 on driving times, breaks, rest periods, the EU legislation requires from a driver and a transport undertaking producing a full set of records of driver's activities over a relevant period of time. In this regard Article 34(1) of Regulation (EU) No 165/2014 requires the drivers to use record sheets or driver cards every day on which they are driving, and Article 34(3) stipulates that when, as a result of being away from the vehicle, a driver is unable to use the tachograph fitted to the vehicle, periods of other work, availability and periods of breaks and rest shall be entered by using manual inputs. Second paragraph of Article 34(3) prohibits Member States from imposing the use of the form attesting for driver's activities while away from the vehicle. However, it does not prohibit the use of such a form by drivers for the purpose of attesting activities when away from the vehicle and when it was impossible for them to record such activities retroactively by manual entries. The rationale behind this provision is to prevent unnecessary burdens on drivers and undertakings and to promote the use of tachograph as a main tool to display, record, store and print details on driver's activities and inactivity periods.

 

 

 

In accordance with Article Article 36 of Regulation (EU) No 165/2014 a driver should be able to produce and present to the competent authorities the full set of tachograph records, including manual entries, for the current day and the previous 28 days.

 

This obligation is reiterated by Article 6(5) of Regulation (EC) No 561/2006, which requires the driver to record other work and availability periods on each and every day since his last daily or weekly rest period, and not only on the days when a driver performs operations falling within the scope of the Regulation. It would be against the objectives and the spirit of the Regulation if only records for the day when the 'in-scope' driving is performed would be required. Indeed, other work outside the transport sector or out-of-scope driving may also have bearing on driver's fatigue, and subsequently endanger road safety as well as deteriorate his health and working conditions.

 

 

 

Article 11(3) of Directive 2006/22/EC provides that in certain situations when a driver was away from the vehicle, within the period of 28 days, an electronic and printable form established by Commission Decision of 14 December 2009 [C(2009) 9895] should be used. This "attestation of activity" form serves to register the information which could not be registered in a tachograph via manual entries.

 

 

 

Practical implementation:

 

All the above-mentioned provisions must be read jointly. Subsequently, it is to be understood that a driver is obliged to produce and present the full set of tachograph records for the current day and the previous 28 days. These records should cover all periods of activity (driving, availability, out of scope driving, other work, etc.) and inactivity (breaks, rest periods, annual leave, sick leave, etc.) for each and every day. When, as a result of being away from the vehicle, it is not possible to use the tachograph on each and every day to record driver's activities and inactivity periods, these should be recorded retroactively by using manual entries on the day when a driver activates tachograph following the period of being away from the vehicle. If, for technical reasons, such retroactive recording is not possible (e.g. in case of 1st generation of digital tachographs) or appears excessively burdensome (e.g. a driver was working out of scope for a longer period preceding the activity of driving in-scope) a driver may use the standard attestation form established by Commission Decision C(2009) 9895 in order to cover the gaps in the tachograph records. Member States' enforcement authorities are recommended to accept that standard attestation form in such justified situations, but at the same time Member States should not impose the use of this form (or any other form attesting for driver's activities when away from the vehicle) and should not penalize the drivers for a lack of such a form.

 

 

 

I hope this replies to your questions.

 

 

Unfortunately this clarification does not solve entirely the problem with different enforcement approaches applied in different Member States. We are currently working on the ex-post evaluation of the social legislation in road transport and its enforcement in order to address all outstanding and newly arising implementation issues, such as this one. The targeted revision of the most problematic provisions is envisaged for the end of 2016

Mike Grant
Mike Grant
Posts: 142
Quote:
Originally posted by ovlov man, 18:13, 7th October 2015

back again - I have had a reply from the EU which is below, as you can see from the final paragraph they're got to review this section by end of 2016 so no doubt we'll see further changes. Keep them ...

Read more
Read less

back again - I have had a reply from the EU which is below, as you can see from the final paragraph they're got to review this section by end of 2016 so no doubt we'll see further changes. Keep them forms to hand!

 

Thank you for your query. Indeed the issue of recording and controlling activities of a driver when he was away from the vehicle has become a topical issue since entry into force of Article 34 of Regulation 165/2014.  As we observed a variety of interpretations and at least two main contradictory enforcement approaches we decided to issue a clarification note.

 

 

 

The Commission services standpoint is following:

 

 

 

Legal frame

 

In order to ensure more rapid, effective and comprehensive controls of compliance with the provisions of Regulation (EC) No 561/2006 on driving times, breaks, rest periods, the EU legislation requires from a driver and a transport undertaking producing a full set of records of driver's activities over a relevant period of time. In this regard Article 34(1) of Regulation (EU) No 165/2014 requires the drivers to use record sheets or driver cards every day on which they are driving, and Article 34(3) stipulates that when, as a result of being away from the vehicle, a driver is unable to use the tachograph fitted to the vehicle, periods of other work, availability and periods of breaks and rest shall be entered by using manual inputs. Second paragraph of Article 34(3) prohibits Member States from imposing the use of the form attesting for driver's activities while away from the vehicle. However, it does not prohibit the use of such a form by drivers for the purpose of attesting activities when away from the vehicle and when it was impossible for them to record such activities retroactively by manual entries. The rationale behind this provision is to prevent unnecessary burdens on drivers and undertakings and to promote the use of tachograph as a main tool to display, record, store and print details on driver's activities and inactivity periods.

 

 

 

In accordance with Article Article 36 of Regulation (EU) No 165/2014 a driver should be able to produce and present to the competent authorities the full set of tachograph records, including manual entries, for the current day and the previous 28 days.

 

This obligation is reiterated by Article 6(5) of Regulation (EC) No 561/2006, which requires the driver to record other work and availability periods on each and every day since his last daily or weekly rest period, and not only on the days when a driver performs operations falling within the scope of the Regulation. It would be against the objectives and the spirit of the Regulation if only records for the day when the 'in-scope' driving is performed would be required. Indeed, other work outside the transport sector or out-of-scope driving may also have bearing on driver's fatigue, and subsequently endanger road safety as well as deteriorate his health and working conditions.

 

 

 

Article 11(3) of Directive 2006/22/EC provides that in certain situations when a driver was away from the vehicle, within the period of 28 days, an electronic and printable form established by Commission Decision of 14 December 2009 [C(2009) 9895] should be used. This "attestation of activity" form serves to register the information which could not be registered in a tachograph via manual entries.

 

 

 

Practical implementation:

 

All the above-mentioned provisions must be read jointly. Subsequently, it is to be understood that a driver is obliged to produce and present the full set of tachograph records for the current day and the previous 28 days. These records should cover all periods of activity (driving, availability, out of scope driving, other work, etc.) and inactivity (breaks, rest periods, annual leave, sick leave, etc.) for each and every day. When, as a result of being away from the vehicle, it is not possible to use the tachograph on each and every day to record driver's activities and inactivity periods, these should be recorded retroactively by using manual entries on the day when a driver activates tachograph following the period of being away from the vehicle. If, for technical reasons, such retroactive recording is not possible (e.g. in case of 1st generation of digital tachographs) or appears excessively burdensome (e.g. a driver was working out of scope for a longer period preceding the activity of driving in-scope) a driver may use the standard attestation form established by Commission Decision C(2009) 9895 in order to cover the gaps in the tachograph records. Member States' enforcement authorities are recommended to accept that standard attestation form in such justified situations, but at the same time Member States should not impose the use of this form (or any other form attesting for driver's activities when away from the vehicle) and should not penalize the drivers for a lack of such a form.

 

 

 

I hope this replies to your questions.

 

 

Unfortunately this clarification does not solve entirely the problem with different enforcement approaches applied in different Member States. We are currently working on the ex-post evaluation of the social legislation in road transport and its enforcement in order to address all outstanding and newly arising implementation issues, such as this one. The targeted revision of the most problematic provisions is envisaged for the end of 2016

Ovlov Man,

Thanks for researching and posting that.  It certainly helps clarify what is intended by the legislation and from a practical viewpoint is useful "ammunition" should any enforcement officer, or future examiner, try adopting a different line.

Mike Grant

 

cotsolutions1
cotsolu ...
Posts: 1

I am not sure that I agree with this interpretation.  Accepting that Article 34 requires drivers to use record sheets or cards for "every day on which they are driving" sub para (3) acknowledges that there are  times when the driver could be away from the vehicle and lays out what the driver should do in cases where s/he is using either a digital or analogue tachograph.  Quite seperately within that sub para is the statement that MS shall not impose a duty on drivers to present  forms attesting to their duty.  Nowhere in that Article does it refer to only time spent away from a vehicle on a day that they have driven a vehicle.  I believe, that being the case, the Article should be read in its broadest form i.e any time spent away from the vehicle whether the driver has driven that, or another vehicle, in that day or not.

Neither am I sure that EC 561/2006 requires a letter of attestation.  Rather, it is EC Directive 2006/22 (Article 10(3)) that requires a form to be completed in respect of a driver who is on sick or annual leave or has been driving another vehicle which is out of scope of "Regulation 3820/85" or "during the period mentioned in the first indent of the first subparagraph of Article 15(7) of 3821/85".  This last phrase of course referring to records for the "current week and the previous 15 days"  (now 28 days).  Clearly this is specifically intended for use when the driver may, or will, not have driven a vehicle in that day.

 

Where does that leave us?  Well, first of all, I shall not be advising drivers or operators on Driver CPC or other courses to abandon their letters of attestation yet.  Try arguing the finer points of EU legislation with a French enforcement officer at the side of the road with 53 people in the back of your coach!  As far as the CPC exam is concerrned, I am not sure that this is a fair line of questioning until we have a stated case which will tell us what we should do.

Mike Grant
Mike Grant
Posts: 142
Quote:
Originally posted by cotsolutions1, 11:13, 23rd June 2015

I am not sure that I agree with this interpretation.  Accepting that Article 34 requires drivers to use record sheets or cards for "every day on which they are driving" sub para (3) acknowledges ...

Read more
Read less

I am not sure that I agree with this interpretation.  Accepting that Article 34 requires drivers to use record sheets or cards for "every day on which they are driving" sub para (3) acknowledges that there are  times when the driver could be away from the vehicle and lays out what the driver should do in cases where s/he is using either a digital or analogue tachograph.  Quite seperately within that sub para is the statement that MS shall not impose a duty on drivers to present  forms attesting to their duty.  Nowhere in that Article does it refer to only time spent away from a vehicle on a day that they have driven a vehicle.  I believe, that being the case, the Article should be read in its broadest form i.e any time spent away from the vehicle whether the driver has driven that, or another vehicle, in that day or not.

Neither am I sure that EC 561/2006 requires a letter of attestation.  Rather, it is EC Directive 2006/22 (Article 10(3)) that requires a form to be completed in respect of a driver who is on sick or annual leave or has been driving another vehicle which is out of scope of "Regulation 3820/85" or "during the period mentioned in the first indent of the first subparagraph of Article 15(7) of 3821/85".  This last phrase of course referring to records for the "current week and the previous 15 days"  (now 28 days).  Clearly this is specifically intended for use when the driver may, or will, not have driven a vehicle in that day.

 

Where does that leave us?  Well, first of all, I shall not be advising drivers or operators on Driver CPC or other courses to abandon their letters of attestation yet.  Try arguing the finer points of EU legislation with a French enforcement officer at the side of the road with 53 people in the back of your coach!  As far as the CPC exam is concerrned, I am not sure that this is a fair line of questioning until we have a stated case which will tell us what we should do.

Cotsolutions1,

Welcome to the forum.

I agree entirely with your last paragraph. Traditional practices on the ground will not change quickly where they are long established and the legal status of this topic is best avoided in exam questioning.  My original post aimed to draw attention to the development.  My students for the last exam were also advised that there could still be value in carrying a document in some countries.

As to the legal interpretation of the clauses I do not feel qualified to add comment.

I do know that the Confederation of Passenger Transport is seeking clarification from the European Commission over the detailed interpretation.  CPT members have been told that manual input to a modern digital tachograph prior to recommencing work should now suffice as a record of activity whilst away from the vehicle.

I imagine the CPT enquiry will result in some definitive guidance from the Commission in due course.

Interestingly, I've yet to see anything about this in the trade press on the freight side.

 

ovlov man
ovlov man
Posts: 10

Just spent half an hour reading and rereading article 34. I have come to the conclusion that 'members states shall not...' only refers time spent away from the vehicle on a day which they have driven a vehicle. Art 34(1) starts 'Drivers shall use . . on every day which they are driving'. 

Article 36(1) (iii) 'any manual records and printouts made during the current day and the previous 28 days as required under this regulation and regulation (EC) No 561/2006. It was 561/2006 that required Letters of Attestation for days when the driver did not drive so it still applies. Do not throw away those letters.

As regards 'the market leader...' please read their disclaimer on the front page of the student notes.