This allows drivers to ‘go over’ their hours as a result of an unexpected delay; but only to the extent necessary to find suitable parking. It will exempt the driver from an infringement.
What is an infringement?
All drivers who have to deal with tachographs are aware of the various rules relating to 45-minute breaks, 11-hour daily rests etc. Any violation of these, no matter how small (even by one minute) is enough to be considered an infringement.
What does Article 12 say?
Article 12 states:
“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.”
This means that, provided you do not create a bigger danger on the road, you are permitted to drive over your time to enable you to get to suitable parking in order to protect the safety of the driver, the vehicle or its load. The driver must also record the reasons for this on the analogue chart or on the back of a printout.
What kind of situations does it cover?
The best way to think of an Article 12 exemption is when something is unexpected such as a traffic accident between junctions of a motorway and you having to wait 30 minutes to get moving which has pushed you over your daily spread.
However, the rule is worded is a broad manner to cover any unexpected event which makes it impossible for the driver to remain compliant with drivers’ hours.
How does this work?
If (or when!) you are stopped by the DVA/DVSA and your cards are checked, you will normally receive a fine if you have an infringement. However, if you show the examiner the printout from the day of the infringement, you will not receive a fine.
This is normally how it operates, but there can be particular issues.
- If you knew the run could not be done within your hours.
Article 15 of the 2006 Regulation states that employers must organise the work of their driver so as to comply with drivers’ hours. This means that, when you leave the yard with a load and are aware that there is a risk that the run may not be completed within your available spread etc., you will not be able to rely on an exemption under Article 12.
This applies regardless of what type of goods you are carrying. Many drivers think that carrying perishable / fresh allows them to drive over their hours. This is not the case; although it has been argued that the wording in Article 12 which allows drivers to go over their hours to ensure the safety of their load, could cover such a situation. The Court of Justice of the EU has settled this matter and made clear that infringements can only be exempted if the delay was unexpected – if you knew you would not have enough time to finish the run, you cannot use Article 12 to avoid an infringement.[1]
- Provided that road safety is not jeopardised.
Using Article 12 to move the lorry when your hours are up does not mean you can do so no matter what. The safety of yourself, your lorry and your load must be balanced against consideration for road safety in general. If, for example, you are too tired to move the lorry safely, then you will not be covered by Article 12.
- Suitable stopping place.
This particular point has not been substantively addressed by the courts and therefore, a large amount of the interpretation will be done by individual traffic examiners.
Much of it will come down to common sense. If you decide to drive three hours over your spread, simply to get to a chippy that you like, while you pass two motorway service stations, then it is possible that you will be denied the use of Article 12. However, if you are in a spare unit with no food, then passing a number of empty lay-bys in order to get to a service station an hour away may be more acceptable. You, as the driver, must make an assessment on what would be reasonable, in your professional opinion, to do.
There will also be scope for choosing a stopping place based on the type of load you are carrying. If you have an abnormal load, then you will be permitted to travel to the nearest wide-load bay at services etc. The same flexibility should apply to livestock and high-value cargo where a normal A-road lay-by or industrial estate is simply not suitable.
Also bear in mind that road safety cannot be jeopardised regardless of what circumstances you find yourself in.
- Recording.
As soon as you park at the nearest suitable stopping place, you must take a driver print-out for that day (or write on the back of the analogue chart), the reasons for driving over your hours. It is also best practice to mention that you only drove over your hours to the extent necessary find the nearest suitable parking and then sign it along with the date and time.
If you do not record the reason for driving over your hours, you cannot avail of Article 12, even if you were fully entitled to drive over your hours.[2] It appears that most of the issues which arise under Article 12 are due to this point. Lorry drivers are inconvenienced every day by traffic accidents, unexpected delays at deliveries etc. all of which are covered by this exemption, but the drivers are ultimately fined because of a lack of recording or inadequate recording of reasons. Documenting these events is absolutely vital – and the more information you provide, the better your chances. Best practice would be to write a few sentences on a notebook and staple this to the chart / print-out. The tachograph regime is a very formal and strict system, so likewise, any exemptions to the regime must be similarly formal and strict.
Remember to inform your employer of this at the time.
- After 28 days.
It is quite easy to lose the Article 12 print-out after 28 days since it essentially does not matter to you any longer, but do ensure that you give your employer your print-out with the reasons or remind them of the analogue chart which bears the reasons on the back when you hand these in after 28 days.
[1] Case C-235/94; (R v Bird [1996] RTR 49).
[2] Harding v Vehicle and Operator Services Agency [2010] EWHC 713 (Admin).
Transport Law NI 