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Ringing the changes over rolling hours

24th February 1994
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Page 42, 24th February 1994 — Ringing the changes over rolling hours
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Which of the following most accurately describes the problem?

What a fiasco. We have had more than five years of uncertainty over the interpretation of Article 7 on driving periods and breaks. Initially the Department of Transport took one view and the police took another view. The DOT then took the police view. The matter went to the European Court and finally a decision was made on 15 December 1993. But there is still room for doubt over the interpretation of this decision—it has been said that the latest decision is clear if you understand it. This may be good business for lawyers, but the poor old operator is left to wonder if he is accidentally breaking the law and putting his licence at risk.

Let's look at the actual Article 7 of EEC Regulation 3820/85, published on 20 December 1985.

Breaks and rest periods

1: After 4V2hours driving, the driver shall observe a break of at least 45

minutes, unless he begins a rest period. 2: This break may be replaced by breaks of at least 15 minutes each distributed over the driving period or immediately after this period in such a way as to comply with the provisions of Paragraph I.

This seems simple until the driver or his transport manager tries to interpret and apply them to practical situations.

On 15 December 1993 The European Court stated: "Article 7(1) and (2) of the

Council Regulation (EEC) Number 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport is to be interpreted as prohibiting drivers to which it applies from driving continuously for more than41/2hours. "But where a driver has taken 45 minutes break, either as a single break or as several breaks of at least 15 minutes during or at the end of a 41/2-hour period, the calculation provided for by Article 7(1) of the Regulation shall begin afresh, without taking into account the driving time and the breaks previously completed by the driver.

"The calculation provided by Article 7(1) of the Regulations Number 3820/85 begins at the moment when the driver sets in motion the recording equipment provided for by Council Regulation (EEC) Number 3821/85 of 20 December 1985 on the recording equipment in road transport, and begins driving." It is important to look at the exact words rather than, as has happened in the past, different_people putting Forward their summaries of what the European Court said. But many operators and drivers could still be left in the dark.

Prior to the judgement in December, the 41/2-hour cumulative driving could be taken from any point during the day—hence the term "a rolling period". Normally the prosecuting authorities would start at the conclusion of a break, look forward over 41h hours cumulative driving and see if the appropriate breaks had been taken. The prosecution could look at any period of 41/2 hours starting at any time, and the same driving period could have been included in that calculation more than once.

This interpretation was as a result of the Mayfield Chicks case heard at Burnley Crown Court.

Recent judgements seem to follow the French interpretation: after 45 minutes break comprising all the breaks of at least 15 minutes within a 41/2-hour driving period, the calculations provided for by Article 7 begin afresh without taking into account all the previous periods.

This is a type of "wipe the slate clean" approach which was in fact originally advocated by the DOT.

To demonstrate this ambiguity one can simply look at the "blue booklet" published by the DOT in February 1991. It gave an example which would be acceptable as legal prior to the rolling 4V2-hour interpretation but became illegal after the Ministry adopted the police view of a rolling 4.5hour period (see diagram 1).

The tables have now been turned and that example would now be legal under the judgement of the European Court.

Looking at diagram 1, the driver would have driven for a total of 41/2 hours and had 45 minute breaks so he would have had three 15-minute breaks totalling 45 minutes. At that point one would start again. The driver then drives for 3 hours, has a 30-minute break and drives for 11/2hours and takes his daily rest. He has therefore driven two periods of 41/2 hours, each with the required break. Under the previous "rolling 41/2-hour period" interpretation, the DOT would have said after the first 15-minute break there is a 6.5hour driving period with only 30 minutes of breaks—from the end of the first 15-minute break until the end of the three-hour driving period. A further 15 minutes would have been needed to split that three-hour driving period into a one-hour and a two-hour period. Alternatively a 30-minute break could replace the third fifteen-minute break and a 15-minute break could replace the final 30minute break. The earlier "blue book" was corrected in May 1993 to comply with the "rolling period" (see diagrams 2 and 3).

But this is no longer the case. In order to achieve that result they are using the same

driving period in a different block of 41/2 hours, and it can only be used once. The decision doesn't seem to have achieved what was intended because a driver can drive for 83/4 hours with only one 15-minute break (see diagram 4). This is despite the Court saying: "The Regulation shows that the limits set on driving times are intended to serve the interests of road safety." It is important to remember that the minimum break is 15 minutes. If less than 15 minutes is taken as a break it does not count as a break, nor does it count as driving. Any combination of breaks must add up to 45 minutes or more:

• An 18-minute break plus a 27-minute break equals 45 minutes;

• A 15-minute break plus a 16-minute break requires a further 15-minute break in order to comply because although a 14minute break makes up the total of 45, it is below the minimum of 15 minutes.

Under theprevious rolling 41/2-hour interpretation offences would be committed in some of these examples. The point is that when a driver has taken a 45-minute break, either as a single break or as several breaks of at least 15 minutes, during or at the end of a 41/2-hour driving period., the calculation should begin again after the last break.

No account may be taken of the driving time and the breaks previously completed by the driver.

The calculation begins the moment when the driver sets in motion the tachograph and begins driving. A driver may not drive continuously for more than 41/2 hours.


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