Who is responsible for compliance with social legislation?
This question arises again and again, especially in the case of the transport supply chains, that is, when transport orders are placed by several parties. Whether it is freight or passenger transport, the situation is the same in both cases. Many see it as the responsibility of the transporting operator to ensure compliance.
Legislators have set, years ago, that in addition to the actual transport operator, that provides the transport service, the client/subcontractor is also responsible, that the rules for driving and rest periods are respected. This responsibility is defined in Chapter III Liability of Transport Undertaking in Article 10 (4) of Regulation EC 561/2006.
The respective client/subcontractor has to ensure that the contract transport operator complies with the regulations. He must check with the transport company before concluding the contract and at reasonable intervals during the contract period and work towards, that the contracted transport operator is in a position due to its personnel and material equipment as well as its operational organization, to carry out the planned transport orders in compliance with the regulations.
Which regulations are the concern here, let’s look in detail? This is defined accordingly in the first sentence of the same paragraph: In addition to the transport companies are also with them in business connection […] responsible for compliance with Regulation EC No 561/2006.
So it’s about the driving and rest times, i.e. EU driver hours regulation, which is also consistent with the wording of Article 10 of the EU Regulation: “[…] ensure that contracted schedules do not violate this Regulation“. At the same time, however, the reference to the “present regulation” should not be overlooked. However, this ordinance does not only regulate the driving time and rest periods. It regulates also the correct use of the digital tachograph.
Is the client/subcontractor now also responsible for any incorrect operation of the digital tachograph, such as the lack of input of the country code, at the being or end of the shift?
If strictly interpreted, this question would definitely be answered in the affirmative. In principle, however, when interpreting the regulation, their purpose and objectives must be included. The aim of the client/subcontractor involvement on the joint liability is to prevent them from placing transport orders with a transport operator on the basis of there market power, which would only be possible if the driving time and rest periods are not bypassed. So it’s about road safety, the protection of drivers and all other road users. Therefore, a liability for operating violations, such as the incorrect entry of the country code, this probably goes too far.
However, there are also duties in the operation of the tachograph, which, in turn, have a significant impact on the ability to control driving and rest times. In the first place, I must be mentioned the Manual entry. Likewise the use of the Local time and Time zone. Both regulations are therefore essential for the assessment of whether the driving and rest periods are respected. Accordingly, in these points, the co-responsibility of the client/subcontractor can be seen.
So far, there is no court decision on the client/subcontractor liability. Therefore, to date, one can only speculate, how extensive such liability is and to be assessed what specific obligations the client/subcontractors have. In the case of long-term contractual relationships, with a client/subcontractor, to agree in advance the transport operation and give access to the data files. And then, as described above, of course, to pay attention to certain rules for the operation of the tachograph.