EU Regulation 561/2006/SOCIAL LEGISLATION IN ROAD TRANSPORT
Regulation (EC) No 561/2006, Directive 2006/22/EC, Regulation (EEC) No 3821/85
GUIDANCE NOTE 1
Issue: Exceptional deviation from minimum rest and maximum driving limits in order to find a suitable stopping place.
Article: 12 of Regulation (EC) No 561/2006
Approach to be followed: Article 12 contains provisions that permit a driver to depart from the
minimum rest requirements and maximum driving times contained in Articles 6 to 9 in order to find a
suitable stopping place. This article does not authorize a driver to derogate from the Regulation for
reasons known before the journey commenced. It is designed to enable drivers to deal with cases
where it unexpectedly becomes impossible to comply with the Regulation during the course of the
journey, that is in situations of abnormal difficulties, independent of the will of the driver and
apparently unavoidable that may not be anticipated, even if all due care is taken. The derogation has
also the function of ensuring the safety of persons, of the vehicle and of its load and the requirement
that road safety must in any event be taken into account.
Three parties have certain obligations in relation to such situations:
-
A transport undertaking must plan carefully a driver’s safe trip foreseeing, for instance, regular
traffic jams, weather conditions and access to adequate parking places, that is, it must organize work in
such a way that drivers are able to comply with the Regulation and should take into account the
requirements of shippers and insurance companies concerning safe parking are satisfied. -
A driver must rigorously stick to the rules and not deviate from driving time limits unless
exceptional circumstances occur unexpectedly and it becomes impossible to comply with the
Regulation without endangering road safety, the safety of persons, the vehicle or its load. If a driver
decides that it is necessary to derogate from the Regulation and that this will not jeopardise road safety
he/she must indicate the nature and reason for derogation manually (in any Community language, on
the record sheet or on the print out from the recording equipment or on the duty roster) as soon as
he/she stops. -
An enforcer must apply professional discretion when controlling a driver and assessing whether the
departure from driving limits is justified.
When assessing the legitimacy of the deviation on the basis of Article 12 all circumstances must be
examined carefully by an enforcer including:
(a) a history of driver’s driving records to establish the pattern of driver’s performance and verify
whether the driver normally complies with driving and rest time rules, and that the deviation is
exceptional;
(b) the deviation from driving time limits must not be a regular occurrence and must be caused by
exceptional circumstances such as: major traffic accidents, extreme weather conditions, road
diversions, no place at the parking area, etc. (This list of possible exceptional circumstances is
only indicative. The principle for assessment is that the motive of possible deviation from driving
limits must not be known or even possible to foresee beforehand);
(c) daily and weekly driving limits should be respected, hence the driver should not have any ‘time
gains’ by exceeding driving limit in search of a parking place;
(d) the deviation from the driving time rules must not lead to a reduction of the required breaks,
daily and weekly rest.
Comment: European Court of Justice, Case C-235/94
