Return of the driver to the company’s operations centre or his/her home (20.08.2020)

The Mobility Package requires the carrier to organise the drivers’ work in such a way that they are able to return to the operations centre (base) or his/her place of residence in order to take the required appropriate rest. During this time they should take at least one regular weekly rest or a weekly rest of more than 45 hours as compensation for the reduced weekly rest.

It is important that transport companies organise the work of drivers in such a way that they do not spend too much time away from home and that they can take long rest periods for example at home. Drivers should ultimately have the freedom to choose where they will spend their rest period – at home or at the company headquarters.

Such activities must be documented in the form of tachograph records, drivers’ duty rosters or other documents. They should be available at the premises of the transport undertaking and presented to the inspection authorities on request.

The objective of the measure is to improve the working conditions of drivers in road transport by avoiding that they spend excessively long periods on the road.

The obligation is on the transport undertaking, to organise the work of drivers in such a way that they are able to return (‘home’) within each period of three or four consecutive weeks (depending whether the driver had two consecutive reduced weekly rests).

Article 8(8a) of the Regulation refers to two possible places of return that must be offered and organized by the employer, namely the employer’s operational centre where the driver is normally based in the Member State of the employer’s establishment, or the drivers’ place of residence when the latter differs from the employer’s place of establishment.

As stated by Recital (14) of the Regulation, “[….] the drivers are free to choose where to spend their rest period”, it is up to the driver to choose among the two options offered by the employer. This implies that the driver may not be obliged by the employer to choose the employer’s establishment as the place of return.

A question can arise where the driver does not express a choice between these two possibilities. In this case, the employer can choose between the two, according to what is considered more convenient. Evidence in this context would include an invitation (e.g. e-mail), put to the driver but not followed up, to choose between the residence or the operational centre of the undertaking.

A different matter is where the driver ultimately spends his or her rest. In this respect, the Regulation does not prescribe any particular place and there can be no infringement to EU law on this count. That said, the employer has to offer the possibilities of return as prescribed by the Regulation. The rule establishes an obligation of an organisational nature, combined with an obligation to keep the corresponding records for checks by the competent authorities.

While the driver may choose his/her place of rest, he/she has no possibility to release the employer from its obligations to organize the work enabling the regular return to “home”. This obligation on the transport undertaking remains, whatever the driver declares, and whatever he or she ultimately makes out of it.

To sum up, the employer is obliged to offer to the driver a possibility of return to either his or her place of residence or to the employer’s operational centre where the driver is normally based, through an appropriate organisation of the work. Such organisation has to be actively undertaken, without particular request by the driver. As regards the concrete place of rest, this is a matter for the driver to consider and does not require the employer nor the driver to keep any particular evidence.

For example, a Polish driver residing in Slovakia and employed by a company established in Poland carries out transport operations between France and Spain. The employer must offer the choice to this driver, and organise the work accordingly, so as to enable the driver to return either to the place of residence (Slovakia) or the operational centre of the company (Poland) on regular basis. The driver may however inform the employer of his/her decision to take the opportunity of a break to go to another place, e.g. south of Italy for holiday. After the break, the driver will go directly from the place where he took his rest in Italy to the place where he/she will restart work (Spain or France).

Transport undertakings shall use tachograph records, duty rosters of the drivers or other documentation to prove compliance with the obligation to organise the return of the driver (recital 14 of Regulation (EC) No 561/2006). Other documentation proving that the employer offered a genuine possibility to the driver to return either to the place of residence or to the operational centre of the undertaking could include, for example, tickets or any other proof of other travel arrangements (e.g. a proof that a driver travelled back ‘home’ by a mini-bus provided by an employer).

The evidence must be kept at the premises of the undertaking and be presented if requested by the control authorities of the Member State of establishment of the employer or by the control authorities of any other Member States. The driver should not be requested to possess such have evidence, nor to possess evidence of the place where he spent a regular weekly rest or longer break. After having performed a roadside check, the control authorities could for example decide to request additional information on the activity of a driver to the authorities of the Member State where the road transport undertaking is established. Regulation (EC) No 561/2006 and Directive 2006/22/EC provide that Member States shall assist each other in applying the Regulation and in checking compliance herewith.

The obligation of the employer to enable a regular return of a driver is of an organisational nature, combined with an obligation to keep corresponding records for checks by competent authorities. Therefore, a declaration/a waiver signed by a driver (for example, as part of employment contract or a declaration renouncing in advance to the right of return, i.e. before the driver receives an offer from the employer) renouncing his/her right to choose a return “home” cannot exonerate the employer from the obligation to offer a real possibility to return, nor from the obligation to organise the work accordingly.

If a driver ends his/her working period in one of the two places of his/her choice for the return or in the vicinity of one of those places, then there are no additional travelling costs involved for the employer.

In the case where the working period preceding the return to one of the two places ends in a place distant to the chosen place of return, then the employer’s obligation to organize the return of the drivers includes a financial responsibility to cover travel costs.

When a driver decides not to benefit from the employer’s offer to return to the driver’s place of residence or to the operational centre of the employer and decides to spend his/her rest period in another place, then any travelling costs to and from this place should be covered by the driver.

The same principles apply to drivers having a place of residence in a third country and being employed by the company established in the EU.

Article 8(8a) applies to employed drivers only.

Regulation (EC) No 561/2006 does not define what marks an employment relationship. However, absent a reference to national law, the concept must be understood as having an autonomous meaning based on objective factors.

For its interpretation, inspiration may be drawn from jurisprudence regarding similar situations (see Cases C-658/18, paragraphs 88 et seq.; C-147/17, paragraphs 41 et seq.; C-316/13, paragraphs 27 et seq.). Thus, the determination of the existence of an employment relationship should be guided, by the facts relating to the actual performance of the work and not by the parties’ description of the relationship. According to the Court, whether a person is an employed person or not must be determined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. The essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he/she receives remuneration.

To the same effect, even though the definition of “self-employed driver” contained in Directive 2002/15/EC is not as such applicable in the context of Regulation (EC) No 561/2006, regard may be had as well to that definition. An activity conducted as “self-employed driver” within the meaning of that definition should not be considered as giving rise to an employment relationship for the purposes of Article 8(8a) of Regulation (EC) No 561/2006.

Genuinely self-employed persons do not fall within the scope of Article 8(8a). However, a person, that is merely declared to be self-employed but whose situation fulfils the conditions characterising an employment relationship with another (natural or legal) person, instead must be considered as employed person for the purposes of Article 8(8a) and is thus covered by this provision.