Under Article 3(g) the relevant regulation states it “shall not apply to carriage by road by vehicles undergoing road tests for technical development, repair or maintenance purposes, and new or rebuilt vehicles which have not yet been put into service.”

Therefore, it was taken that as vehicles being driven to or from a ‘Test Centre’ were not undergoing road tests for technical development, repair or maintenance purposes then they could not be exempt and as such any driver, whether they be a fitter, mechanic or regular driver was required to take the vehicle, then the driver MUST use a tachograph chart or digital card.

This may appear to be harsh, and although the Department for Transport (DfT) and VOSA may have been sympathetic to this viewpoint, they applied the legislation as above. However, although not in a formal transcript, in June 2008 after consultation, the DfT published that they had taken the view that drivers of in-scope vehicles will not be considered in-scope of Regulation 561/2006 if they are never engaged in the carriage of goods or passengers. These drivers would then be subject to the domestic drivers’ hours rules (where they apply).

Furthermore, the DfT also advised on what this new interpretation would mean for fitters taking vehicles (including tankers) carrying ‘goods’ to the annual test, and those agency drivers who might drive empty hire vehicle for a vehicle rental company one day and then drive under contract for another company transporting commercial goods the next.

The DfT take the view that a journey involving a vehicle laden with a “dummy“ load (e.g. test ballast, concrete blocks etc. which is being taken to an annual test by a fitter, will fall outside the scope of the EU rules. For all other categories of load – for example, goods which would normally be carried on a day-to-day basis, including those of a commercial nature – the journey will fall in-scope of the EU rules. Furthermore, regarding agency drivers, most are considered to be employed by the company they are contracted to drive for on a particular day, not the agency in question. In such cases, the DfT takes the view that each period of employment should be viewed separately. So, for example, they will consider an agency driver to be out of the scope of the EU rules when the driver is employed by a vehicle rental company to drive empty hire vehicles – irrespective of the fact that the driver might be contracted to drive for another company the very next day to transport commercial goods.

This appears to clarify the situation until you look at the wording of the legislation itself:

The legislation EC 561/2006 (the EC Drivers Hours Legislation) states under Article 2: 1. This Regulation shall apply to the carriage by road:

(a) of goods where the maximum permissible mass of the vehicle, including any trailer, or semi-trailer, exceeds 3,5 tonnes, or

(b) of passengers by vehicles which are constructed or permanently adapted for carrying more than nine persons including the driver and are intended for that purpose.

Furthermore, EC561/2006 continues that under Article 4(a) ‘carriage by road’ means any journey made entirely or in part on roads open to the public by a vehicle, whether laden or not, used for the carriage of passengers or goods; The keyword that I find within each part of the regulation itself is that the regulations apply to a vehicle undertaking a specific type of work – I can find no reference to the regulations applying to a driver undertaking a specific type of work.

Gordon Humphreys, of Preston based forensic tachograph chart consultants Foster Tachographs, looks at the issues.

Therefore, it must be questioned, where a regulation which applies to the vehicle and the nature of work that the vehicle undertakes is interpreted as to exempt one driver but not another undertaking the same work. For example, under this interpretation, if a company send a vehicle to a Test Centre, it will depend on who drives the vehicle as to whether a tachograph chart or digital card is required to be used. For example, if the operator sends a fitter/mechanic, who never drives under EC Regulation 561/2006, then no chart is required, but if the company sends a fitter/mechanic who helps out occasionally, i.e. rescues a driver out of time, or any other driver who drives at any time, under EC Regulation 561/2006, then they must use and produce a tachograph record or digital card in order to comply with the legislation.

However, the Regulations apply to the vehicle, not the driver. In which case how can there be a different interpretation depending upon which driver actually takes the vehicle even though the task being undertaken is the same? This does not appear to make sense. As with other exemptions, if, for example, a driver operates a vehicle used for the carriage of passengers on regular services where the route covered by the service in question does not exceed 50 kilometres or drives a specialised breakdown vehicle operating within a 100 km radius of their base, then it doesn’t matter who drives that vehicle a mechanic or a regular driver.

They are both exempt from EC Regulation 561/2006, and domestic regulations would apply, so why is the interpretation different in the matter of a vehicle being taken to or from a test centre? As such, it appears that the new interpretation has just clouded the issue rather than clarify it and as with all these aspects, it is for the Courts to finally give an interpretation and until then best practice would advise that analogue or digital records are kept for these journeys to and from test centres, at least that way you are better having a record that you didn’t need than not having the one that is required by law.

(Ref: Fosters tachograph and Transport Compliance)