Drivers are in breach of the EU weekly rest rules if they take their regular 45-hour weekly rest inside their vehicles, according to the European Court of Justice’s (ECJ) Advocate General.
Article 8(6) of EU Regulation 561/2006 provides that:
In any two consecutive weeks, a driver shall take at least two regular weekly rest periods or one regular weekly rest period and one reduced weekly rest period of at least 24 hours. However, the reduction shall be compensated by an equivalent period of rest taken en bloc before the end of the third week following the week in question. A weekly rest period shall start no later than at the end of six 24-hour periods from the end of the previous weekly rest period.
Article 8(8) of the regulation stipulates that:
Where a driver chooses to do this, daily rest periods and reduced weekly rest periods away from base may be taken in a vehicle, if it has suitable sleeping facilities for each driver and the vehicle is stationary.
An issue over weekly rest came before the Advocate General following a dispute between the Belgian authorities and a Belgian haulage company which contested the imposition of an €1800 fine for non-compliance with the prohibition on drivers taking their regular weekly rest periods inside their vehicles. The haulage company disputed the interpretation of Articles 8(6) and 8(8) as enshrined in Belgian national law, which assumes that, under EU Regulation 561/2006, a regular weekly rest period cannot be taken inside a vehicle. The haulage company claimed that such an interpretation breached the principle of legality in criminal proceedings and the Belgian authorities submitted the case to the ECJ for a ruling.
Advocate General’s opinion in the case
The Advocate General concluded that Articles 8(6) and 8(8) are to be interpreted as meaning that drivers cannot take their regular weekly rest periods inside their vehicles. He also found that Articles 8(6) and 8(8), read in conjunction with Article 19 of EU Regulation 561/2006, do not violate the principle of legality of criminal offences and penalties as enshrined in Article 49 of the Charter of Fundamental Rights of the EU.
The Advocate General noted that there are variations throughout the EU as to whether Articles 8(6) and 8(8) are to be interpreted as meaning that drivers may take their regular weekly rest periods inside their vehicles. However, he said that the reference to “daily rest periods” in Article 8(8), which covers both regular and reduced daily rest periods, alongside “reduced weekly rest periods”, strongly suggests that regular weekly rest periods are excluded from the Article’s scope.
In addition, the Advocate General stated that:
It would seem that, if the EU legislature intended to cover regular weekly rest periods as well as reduced weekly rest periods in Article 8(8), it would have used the term “weekly rest period” to encapsulate both. To interpret Article 8(8) as covering a regular weekly rest period would therefore make the wording of Article 8(8) illogical and superfluous. It would also be illogical to interpret Articles 8(6) and 8(8) as allowing a driver to spend regular weekly rest periods inside the vehicle under less stringent conditions than those that must be satisfied in the case of daily rest periods and reduced weekly rest periods.
The Advocate General maintained that an interpretation of Article 8(8) to the effect that a driver cannot take his or her regular weekly rest period inside a vehicle did not contravene the regulation’s definition of a “rest” by limiting the means by which a driver may freely dispose of his or her time outside of the work environment. The fact that Article 8(8) expressly provides for daily rest and reduced weekly rest periods implies that drivers cannot then spend regular weekly rest periods inside their vehicles.
In summary, the Advocate General proposed that Articles 8(6) and 8(8) should be interpreted to mean that drivers cannot take their regular weekly rest periods, as referred to in Article 8(6), inside their vehicles.
His opinion supports the enforcement measures taken by Belgian authorities in 2014, against companies forcing their drivers to spend the 45 hours’ rest in the vehicle cab. France adopted the same course of action as Belgium, at about the same time. The French and Belgian initiatives to enforce weekly rest provisions prompted considerable protests by hauliers in 2014 and 2015.
It is almost certain that the ECJ will follow the Advocate General’s opinion.