Abstract: Under Article 12 of Regulation (EC) No 561/2006, HGV drivers may depart from drivers’ hours rules where there has been an unexpected delay. However, the absence of a requirement to compensate for any time gained in so departing runs against the central aims of the regulation as companies can competitively benefit at the expense of adequately-rested drivers. An amendment to require compensation should be added to Article 12 and, further, drivers should be allowed to use discretionary compensation to reach a preferred parking area even where there are no delays.
Introduction
As part of the suite of regulatory provisions governing how long HGV drivers can work and drive for, the most understated of these is Article 12 of Regulation (EC) No 561/2006. This allows a driver to depart from some of the most critical rules where there has been an unexpected delay or some other unforeseen event which forces the driver to, for example, move the vehicle during a rest period.
These rules have operated without much opprobrium or criticism. Major representative associations have not agitated for changes, haulage companies appear to be operating comfortably within these rules and there does not appear to be much by way of academic critique in the literature.
However, it will be submitted that Article 12 is inherently defective, or alternatively could be much improved by the addition of a provision which requires compensation of rest to be included where the rules have been departed from. This amendment will assist in the fundamental aim of Regulation 561/2006 insofar as it will ensure drivers who need to depart from the rules are sufficiently well rested. It will also ensure that companies cannot inadvertently benefit from the use of Article 12, thereby enhancing the fair competition and road safety aims of the Regulation.
The need to compensate with extra rest time is not a new concept in drivers’ hours rules, this having been a feature with reduced weekly rest periods under Article 8(6). More recently, a new compensation requirement has been added which allows a driver to exceed their daily or weekly driving time in order to return home. As such, it will be submitted that not only should Article 12 be amended to require compensation in cases of unexpected delays, but also in discretionary cases where the driver may exceed their time in order to get home or to a preferred parking place provided that extra time is compensated for.
Article 12 and its operation
Article 12 of Regulation 561/2006 [the Regulation] reads as follows:
“Provided that road safety is not thereby jeopardised and to enable the vehicle to reach a suitable stopping place, the driver may depart from Articles 6 to 9 to the extent necessary to ensure the safety of persons, of the vehicle or its load. The driver shall indicate the reason for such departure manually on the record sheet of the recording equipment or on a printout from the recording equipment or in the duty roster, at the latest on arrival at the suitable stopping place.”
Some examples of what Article 12 looks like in practice are as follows:
Scenario A: a driver on a regular trip between Cairnryan and Warrington (approximately four and half hours) is delayed at a traffic accident on the M6 at Wigan. The slow pace of traffic combined with the absence of areas to take a break, results in the driver having driven for five hours (30 minutes over the maximum of four and a half hours) before getting to the nearest stopping place to take a break. He must take a print-out and explain the reason for this.
Scenario B: a driver takes their daily rest and is parked in an industrial estate. The driver gets a knock on the door from the police telling the driver to move their lorry due to an abnormal load needing through. The driver gets out of bed, drives the lorry 15 minutes to the nearest suitable stopping place. Again, taking a print-out to explain the reasons.
Scenario C: a driver is planning on taking a mandatory 45-minute break at a particular service station en-route. On finding it is full, continues 20 minutes further towards the destination to find the nearest available parking. A print-out is taken and the reason for the departure noted.
The ambit of Article 12 is narrow. It only permits the driver to depart from the rules ‘to the extent necessary’ and only to do so to ‘ensure safety’. At first glance, it would appear that this is a seldom-used emergency-type procedure. However, the act of ‘taking a print-out’ is almost a weekly occurrence for some drivers, particularly those involved in cross-channel work. Delays appear to be more expected than unexpected in transport planning today. For this reason, it is clear that the current implementation of Article 12 is far divorced from its original intention. It is no longer invoked where safety is an issue, but routinely for mere unforeseen disruptions (or where the disruption was expected but its ultimate duration was not). There is nothing necessarily unjust about this arrangement; on the contrary it is to be welcomed, but a regularisation of this position through an amendment is desirable.
The enforcement of the Article 12 provision by the DVSA in Great Britain and the DVA in Northern Ireland is demonstrated in the dearth of case law. There are only three cases of note, none of them material to the issues raised in this paper and two of them are referrals to the CJEU for a preliminary ruling.[1] The lack of case law on this point is more a reflection of the pragmatism of the regulators rather than the irregular use of Article 12 in the first place.
The gap in Article 12
There are a number of problems with the lack of a compensation requirement in Article 12. The departure from Articles 6 to 9 (the divers’ hours rules) is all but unlimited save for the requirement to reach a suitable stopping place. There is no explicit requirement to reach the nearest suitable stopping place. However, this is likely to be inferred by departing ‘to the extent necessary’, that is to say, if the driver is to pass a number of suitable stopping places, they cannot seek succour from Article 12 due to going beyond the extent necessary.
It is also important to highlight that the only aspect of Article 12 which explicitly ensures road safety is up until the driver finds a suitable stopping place. Once the vehicle is parked, the normal rules resume. For example, in scenario B above, road safety must not be jeopardised during the period of driving 15 minutes to find new parking. Once the driver has eventually parked, the driver can continue taking the remainder of their daily rest. There is no requirement to take an extra 15-minutes rest despite being 15-minutes closer to their destination and have 15-minutes less sleep.
The rules relating to departing from drivers’ hours rules due to unexpected events has been in place, in various forms, since 1972[2] at which time it read:
“Article 13a – Provided that road safety is not thereby jeopardized, the driver may, in case of danger, in circumstances outside his control, to render assistance, or as a result of a breakdown, and to the extent necessary to ensure the safety of persons, of the vehicle or of its load, and to enable him to reach a suitable stopping place or, according to the circumstances, the end of his journey, depart from the provisions of Articles 6, 7(2), (4) and 11. The driver shall indicate the nature and reasons for such departure in the individual control book, or on the record sheet of the recording equipment.”
In 1985 (Regulation No. 3820/85), Article 12 took its current form. The only difference being that the driver could depart from any of the provisions within the Regulation (the current iteration only permitting departure from Articles 6-9 – however not much turns on this distinction).
The decision to remove the listing of certain qualifying events such as ‘rendering assistance’ and ‘breakdowns’ may have been in an attempt to widen the application of Article 12 and to avoid an impression that the list under the old provision (Article 13a) was exhaustive. As will be submitted, however, it is regrettable that the option of reaching ‘the end of his journey’ was discontinued and perhaps has given Article 12 a more prescribed and limited appearance.
The Compensation Amendment – a solution in search of a problem?
It is submitted that Article 12 should be amended to include the following provision:
“In relying on the exception in Article 12, the driver must show an additional period of rest to compensate for the length of time of the departure.”
This amendment removes the unintended incentive for a driver to use Article 12 to the greatest advantage possible. Any gain made by departing from drivers’ hours rules must ultimately be compensated for. Most importantly, however, it ensures a counterbalance between any competitive advantage gained and road safety. In scenario C above, the driver here has travelled 15 minutes closer to their destination. As such, there is no doubt that the driver, their employer, or both have competitively gained by being so closer and have benefitted from the operation of Article 12. This competitive advantage has been gained at the expense of road safety.
Three points arise here. First, despite the potential for almost unlimited rule departures, in reality the majority of cases only involve departures of approximately less than one hour.[3] Most drivers appear to compensate informally in any event and those who do not compensate do not appear to be generating market-disrupting anti-competitive profits for their companies. Secondly, there are some cases which, with a compensation period taken, will produce significant commercial set-backs for companies. This will be most clearly seen where there are slow-moving but long-lasting tailbacks. A driver could be almost 30-minutes behind schedule but then have to stop for a break and add an extra 30-minutes (as in Scenario A). Against this, however, is that road safety considerations are more important than putative commercial disadvantages. Thirdly, there will be cases where the compensation period will be almost impossible to calculate. A fitting example is the current delays on the M20 and operation Brock.[4] With drivers unable to take a suitable rest for many hours, the proposed Article 12 compensation period may turn the air blue in many planning offices.
However, despite the potential issues, it is submitted that Article 12 is conceptually incomplete by comparison with the other Articles[5] (being highly prescriptive) and with the recitals (emphasis on fair competitions and road safety). We know from the recitals of Regulation 561/2006 (paragraph (4)) that this was to be a Regulation defined by bright-line rules.[6] There are minimum and maximum durations for different activities with absolutely no discretion for drivers or companies in adhering to these. Yet, with Article 12, for instance, a regular daily rest period of 11 hours can be interrupted for however long, covering whatever distance and this will be acceptable provided the driver had made a contemporaneous record of the reasons for the departure – there is no need to prove on the written entry that the nearest parking area was used, this being left as a matter of evidence if the regulators decide to take enforcement action.
Towards an expansion of compensation
There is an argument for adding the compensation element, not only to an exceptional departure from the drivers’ hours rules, but also to drivers who find themselves delayed but who want to ‘push on’ to get home or to get to a preferred parking area. This, in a way, exhumes a part of the original derogation provision under Article 13a of Regulation 543/69 which a driver, as a result of unforeseen circumstances, drives over his time in order to reach the end of his journey.
This is becoming increasingly appropriate in recent years with complaints from operators that large RDCs of some multinationals are, as a result of cost-cutting, causing considerable delay to their drivers when delivering or collecting. Such delays are entirely foreseeable. This means that drivers who are delayed for hours on a loading bay, effectively on rest mode, but are forced to park up very soon after due to not having enough time left to continue with their planned route, or to make it on time to their preferred parking area. A discretionary compensation option for drivers to continue their journey despite otherwise being required to park up on account of reaching the end of their driving time or spread over, would greatly assist in the oft-forgotten third aim of the Regulation – improving working conditions (recital paragraph (17)). Importantly, the amendment suggested in this paper must also give only the driver the discretion and not the employer.
Similarly, it is not only commercial reality and the improvement of working conditions which indicate this as a reasonable extension of the law. In recent years due to a driver shortage and covid-19 disruptions, the UK government has implemented a dizzying amount of drivers’ hours relaxations. Even within the UK, these relaxations were not synchronised on account of devolution, particularly with Northern Ireland. The compensation under exceptional circumstances amendment could have taken up the mantle of this and provided some clarity and consistency.
There are, of course, major issues with this. The addition of a discretion into the drivers’ hours rules – no matter how minor – will change the tenor of the Regulation which has always been defined by bright-line rules. There may be, understandably, an objection from regulators that such a discretion will be widely abused by rouge operators and the policing of it will add to the workload of the regulator.
However, such objections fail to recognise that compensation is a central requirement of any discretion. Currently, the regulators (or specifically, the regulators’ computer software) apply a mathematical formula of establishing if there is an infringement or not. Under the proposed discretionary departure and compensation system, it will simply add another layer of calculation. First, the software detects if there has been an infringement and, secondly, detects whether there has been compensation to cover the duration of that infringement. The discretion of the individual regulator will be to decide whether the particular departure ‘jeopardised road safety’.
It is worth noting that, under the new EU mobility package, a compensation element has been added to Article 12 of the Regulation. This allows a driver to exceed either his daily or weekly driving time by up to one hour, or, if a 30-minute break is taken, by two hours to reach his operational base or his home in order to begin his weekly rest. Article 1(11) of Regulation 2020/1054 adds:
“Any period of extension shall be compensated by an equivalent period of rest taken en bloc with any rest period, by the end of the third week following the week in question.”
Although this is only to be used in ‘exceptional circumstances’ and still requires the print-out recording, this is a step in the right direction and was an acknowledgement by the Council in paragraph (8) of the recitals as being desirable to make the working conditions of long-distance drivers better.
Importantly for the purposes of this paper, the new derogation in the mobility package is not limited to unforeseen events or events outside the driver’s control but merely ‘exceptional circumstances.’ This is wide enough to permit anticipated delays but still adds a relatively high bar to prevent the entirety of the provisions being ignored.
Conclusion
It is apparent that the Article 12 departure provision could be brought into line with the aims of its recitals with the addition of a compensation requirement. Currently, operators can take advantage of an unforeseen need to depart from the drivers’ hours rules by having their driver closer to their destination without having to compensate for that advantage, or at the very least, operators can find themselves the inadvertent beneficiaries of such a pressing need all while the driver is fundamentally less rested, thereby raising issues of road safety.
The compensation requirement easily solves both these issues. Such an amendment fits squarely within the intended aims of the recitals to Regulation 561/2006 – improving competition, working conditions and road safety.
No major issues with this discrepancy with the current iteration of Article 12 have been identified and there do not appear to be any injuries or deaths caused by a tired driver who did not compensate for time gained under Article 12. However, the EU is not known for its ‘if it isn’t broke don’t fix it’ approach to legislating, deciding instead to take a more hands-on proactive approach to addressing such issues. This matter is ripe, therefore, for correction and reflects the current informal practice of many operators and drivers in any event.
However, there is good reason to go further than the ‘unforeseen event’ provisions of Article 12. A compensation requirement is already in place in cases of drivers returning home for a weekly rest. Provided this does not produce issues over the next year or so, it should be extended to all drivers’ hours provisions on the basis of exceptional circumstances along with a requirement to compensate.
[1] Harding -v- Vehicle & Operator Services Agency [2010] EWHC 713 (Admin); Case C-235/94 Alan Jeffrey Bird ECR I-3933; Case C-116/92 Charlton & Ors. ECR I-6755.
[2] Article 3 of Regulation No 514/72 amending Regulation No 543/69.
[3] Also of note is the prosecutorial discretion exercised by most authorities in not taking action where the infringement is less than 15-minutes and is not regular: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1072567/dvsa-enforcement-sanctions-policy.pdf .
[4] https://www.bbc.co.uk/news/uk-england-kent-61084304; and, worse still, 33 hour delays at the Poland-Belarus border: https://www.bbc.co.uk/news/world-europe-61133439.
[5] A curious cousin to the compensation issue with Article 12 is that of Article 9(1) which covers ‘ferry mode’ derogations whereby an 11-hour rest can be interrupted to get onto and off a ferry or train. There is no explicit mention of compensation but that is what is required by DVSA and DVA lest a prosecution for insufficient daily rest be brought.
[6] Recitals, of course, being of mere assistance in interpretation and not legislatively binding (Tadas Kilmas and Jurate Vaiciukaite, ‘The law of recitals in European Community Legislation’ (2008) 15 ILSA Journal of International & Comparative Law 61.
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