European transport portals report worrying police practices in Western countries. The fines are not only given to drivers caught red-handed but also those who were not able to document the overnight stay outside the cabin from the previous 28 days. Are there regulations that grant officers such powers?
Bans for spending 45-hour rest in the cabin have been enforced for some time by Western European Union countries. Belgium introduced a new law in 2014. Other countries followed including France, Germany and the Netherlands. In April this year, the Italians also published a circular on this matter, and in Spain, a similar ban will be enforced from next year.
However, it is true that the ban is valid throughout the European Union. On December 20, 2017, a judgment was given in the Court of Justice of the European Union. The Court clarified how Regulation (EC) No. 561/2006 should be interpreted. Thus, it confirmed the legitimacy of sanctions imposed by Western countries for such violations.
Penalties up to 28 days back?
Industry media report more and more frequent cases in which drivers had to acknowledge spending 45 hours outside of the truck’s cabin up to 28 days back. Such controls include in Belgium, Germany and France.
Do the inspection services in these countries really have such a right? Does the driver have to keep bills in the cabin for staying in the hotel?
There is no provision to require any document confirming the place where the driver can take a rest. In addition, not every 45-hour stop is immediately a regular rest – explains Mariusz Hendzel from the Polish Transport Office (ITD).
The expert compares the information about controls 28 days ago with false reports that extract from regulations or employment conditions, where the definition of the „night”, should be carried with them.
Drivers do not have to go home and vehicles can park abroad during long stops. The driver should not spend this rest in a vehicle, but he is not determined where he should be, if he actually has to rest outside the vehicle – emphasizes Mariusz Handzel.
The hotel is not the only option
According to an expert from ITD, a driver can, for example, use the official accommodation rooms provided by foreign contractors.
In addition, some drivers have their own apartments abroad, or use private accommodation. All this is in accordance with the law, and the driver has no technical opportunity to prove where and under which conditions he rested – unless he invents the bill himself,” he explains.
The expert, after analyzing all control rules, states that it is rather the inspector who has to prove in some credible and documented manner that the driver has been receiving incorrect regular rest.
He should also show that a 45-hour stopover is actually a regular rest according to the definition of Regulation 561/2006 and not, for example, a 31-hour rest period, and an overdue, 14-hour rest reduction from three weeks ago. 45 hour rest is not always synonymous with regular rest, and only then is the place of rest sanctioned,” says Hendzel.
Can you prove a violation associated with rest?
An expert from the ITD law firm, which cooperates with law firms from Germany and France, admits that there are infringement proceedings in these countries and they also concern the rules of taking rests.
However, these are situations related to other events, such as reported theft or damage to the vehicle/semi-trailer in the parking lot. In such situations, it turns out that the vehicle is parked for 3-4 days in one place, and the driver himself reports to the police because of losing documents or reporting damage. During the detailed procedure, it turns out that he spends regular rest in the parking lot, additionally he is in the process of carrying out cabotage transport incorrectly and the situation becomes unfavorable for the carrier, who simply organizes badly his transport,” he says.
According to Mariusz Hendz, proving, without the express testimony of the driver, that he spent his rest in the cabin, is extremely difficult.
Neither the fact of taking out or leaving the card in the tachograph determines it, nor does it have an invoice from a hotel that does not prove at all that the driver has spent the night in this hotel. Single, unspecified, cases described in the media, should not be considered as a binding rule and a certainty, because the current practice does not confirm it in any way,” the expert adds.
Mariusz Hendzel draws attention to the exact rules applicable when receiving regular and shortened weekly rests (number, order of their receipt – regular-shortened), the method of documenting such rests (manual entries, certificates of days off), the possibility of moving away from the vehicle for private purposes and making a manual entry after returning, but only at the moment of starting work after all rest, and not during it.
There are a number of elements that should be known and well understood, so as not to be afraid of meeting with the BAG officer or the French gendarmerie. There are no requirements for the documentation of the resting place, no obligation to return vehicles to the base every week for a mechanical inspection or mandatory return to the place of residence,” explains Mariusz Hendzel.
At the same time, he emphasizes that drivers live in various places, often far from the proper place of residence, and the artificial claim that they have to sleep at home every week or every two is „very far-fetched” according to him.
The decision is taken by the driver, of course in agreement with the carrier. If only the two parties meet the minimum prescribed (regular rest, every 2-3 weeks) outside the vehicle, the rest (place, costs and company during rest) is the private matter of the driver. No policeman or inspector has the right to impose on the driver the use of free time,” he explains.
Fines for a week’s rest in the cabin
Let us remind you what penalties drivers face for taking a 45-hour rest in the cabin.
The Belgians charge for a night in a truck in June 2014. The penalty for breaking the ban is 1.8 thousand euro.
In France, the amount of the fine for spending 45-hour rest in the cabin reaches even 30 thousand euro, however, the average amount of is approx. 2.3 thousand euro. This violation has been punished since July 2014.
The Germans introduced the ban on 25 May 2017. In the event of breaking the ban, both the driver and the carrier are punished with the fine of 500 and 1.5 thousand euro respectively.
Italian regulations, on the other hand, provide for fines ranging from 425 to 1701 euros (that is, up to around 7.3 thousand zlotys). In addition, the driver is not to resume driving until the break has been properly completed
In Great Britain, however, fines are imposed only on drivers who spend a week’s pause in a truck parked in a forbidden place. The fine for this violation is 300 pounds.