CLECAT on Mobility Package and joint liability
The European Commission has published its ‘Mobility Package’ at the end of May 2017 which aims to help the sector to remain competitive in what is called ‘a socially fair transition towards clean energy and digitalisation.’ According to the Commission, the proposals will improve the functioning of the road haulage market and help improve workers’ social and employment conditions. This will be done by stepping up enforcement, fighting illicit employment practices, cutting the administrative burden for companies and bringing more clarity to existing rules, for instance on cabotage and posting of workers.
The transport sector has received the proposals with mixed responses.
With regards to the market related proposals, CLECAT welcomes the simplification of the cabotage rules and the strengthened national control practices against fraud through the longstanding need to enhance co-operation between Member States. Already by simplifying restrictions on cabotage and the complexities of compliance, the focus of attention by the legislators falls on compliance regulations that ensure safe operation. However, we have strong doubts red-tape will be reduced with the introduction of the Posting of Workers Directive to the road transport sector.
The revised regulation on access to the market introduces co-liability principles for shippers and freight forwarders when they knowingly commission transport services from hauliers who infringe the rules. According to the Commission, these rules will potentially lead to freight forwarders and shippers to better select the transport companies they work with and not to contract hauliers with bad reputation or a history of infringements. This would lead to more business for compliant hauliers and less to non-compliant ones due to increased understanding of the rules among customers of hauliers.
The Commission’s impact assessment recognises that the extent of these effects is unmeasurable. The introduction of co-liability principles for shippers and freight forwarders is expected to lead to only minor improvements in enforcement. We fear that the reality is that by introducing more regulation, compliant operators with sound business practices will be punished with more administration for those who are not compliant.
The discussion on the joint liability is not new, and Member States like Belgium are well aware of the difficulties in practical enforcement. We have seen that the implementation of Regulation (EC) No 561/2006 on working time, leads in practice to situations where the same facts could make different parties being held liable depending on the Member State.
CLECAT supports increased awareness of rules in the supply chain but remains worried to see better enforcement of the rules by Member States being replaced by national initiatives and regulation, and an increased administrative burden on freight forwarders – sometimes already today to the level of taking over the role of enforcement. It should be noted that freight forwarders always seek to ensure, before contracting a service from a carrier, with due diligence, that rules are being respected, including the legislation with regards to insurance, minimum wages and driving and resting times. There are however limits to what can reasonably be controlled by them to avoid carriers committing offenses, whether intended or unintended. We fear that shared liability will incentivise enforcement officers to further shift part of their responsibility on to those who contract the services. As a matter of principle, it should remain clear that the professional competence of the operator remains the formal means of ensuring operators and drivers understand the laws and legal requirements of road transport.