The European Commission adopted last March a proposal for a Directive facilitating cross-border enforcement in the field of road safety. The Commission based its proposal on the “transport” legal basis, Article 71 (1) (C) EC. Whereas the European Parliament’s Transport Committee has recently supported the Commission’s choice of legal basis Member States are divided on this issue. Several Member States are demanding to the proposal to be adopted in the framework of the third pillar.
According to the Commission traffic offences are not often sanctioned if they are committed with a vehicle registered in a Member State which is not the Member State where the offence has taken place because of the difficulty of identifying them. The draft Directive would set up a system aimed to help Member States to recover financial penalties for road traffic offences that are committed by non-resident offenders, if enforcement does not take place while they are in the country where the offence occurred. The draft proposal covers offences such as speeding, driving under the influence of alcohol, not using a seat belt, and failing to stop at a red light.
The UK Government supports the Commission overall proposal. However, according to Jim Fitzpatrick, the Parliamentary Under–Secretary of State, Department for Transport the Government is considering the procedures and systems required by the proposal as it “does not want to place undue burdens on enforcement authorities that are disproportionate to the practical outcome.” The UK does not have a higher proportion of non-resident traffic from neighbouring countries as other Member States. Hence, the Government believes that the Commission proposal would bring more benefits to Member States which have greater proportion of transit traffic and non-resident offenders than the UK.
The Commission has proposed the creation of an EU electronic data exchange network with the aim of identifying the holder of a vehicle in order to allow the authorities in a Member State, where an offence has been committed, to send out a notification to the holder of the vehicle involved in the offence. If an offence is committed in a Member State with a vehicle which is registered in another Member State, and the case is not sanctioned in the State of offence, the national competent authority of the Member State where the offence took place shall send the vehicle registration number as well as information concerning the offence to the competent authority in the other Member States or if it is possible to identify to the State of residence. The competent authority of the Member States of residence (vehicle registration) would be required to transmit immediately the to the competent authority in the State of offence the information required such as model of the vehicle, the name, address, date and place of birth of the holder of the registration certificate. Having received this information the authority in the State of offence which is in charge of pursuing the offences covered by this Directive shall send an offence notification to the holder. The holder must fulfill a reply form if he does not intend to pay the penalty. If the offence had been committed by a driver other than the holder, the State of offence should decide whether or not to subsequently pursue the driver. The exchanges will be carried out by the national authorities in charge of the vehicle registration documents. Under the draft directive Member States competent authorities shall not store the information sent by the State of offence. According to the Commission data will not be stored in any new EU database nevertheless there are fears that such proposal could be a “Trojan horse” for a wide EU databases of offender drivers.
Member States would be therefore required to take all measures to make sure that an EU electronic network based on common rules is created, which, obviously, entails an administrative burden for the Government. Member states will have two years to implement the measures after the entry into force of the directive.
The Commission has stressed that the draft proposal is not aiming at harmonizing road traffic rules or harmonizing penalties for road traffic offences which are Member States responsibility. The Draft proposal provides for provisions of an administrative nature and it would apply to offences without distingue between criminal or administrative as this differ in the Member States. According to the Commission the draft proposal does not interfere with Member States’ laws in terms of who should be liable for the offences in question. Jim Fitzpatrick has pointed out to the European Scrutiny Committee that “the proposal recognises that some Member States impose penalties on vehicle keepers regardless of circumstances, while others, including the UK, impose penalties on the driver. (…) The details of the proposal are intended to accommodate such a procedure, but it is not yet clear that they would work in practice as drafted.”
The Commission has stressed that Member States should make sure that drivers from other Member States who are driving on their territory are aware of the major road traffic rules in force, such as speed and alcohol limits.
The Commission will have the power to adopt measures designed to amend non-essential elements of this Directive therefore it will have broad implementing powers. The Commission may adopt implementing measures such as technical details of the network through the comitology procedure which is untransparent and unaccountable.
The Draft directive does not provide for further action if vehicle holders or drivers fail to respond to any notification issued under the proposal. However, the Commission has made clear that if the offender does not pay the Council Framework Decision 2005/214/JHA on the application of the principle of mutual recognition to financial penalties can be applied. Nevertheless, the majority of the Member States have not yet transposed the framework decision and because it is a third pillar instrument the Commission has not power to start infringement procedures against the Member States. According to Europolitics a Commission official has said “Long live the Lisbon Treaty – thanks to it, we will be able to enforce the new directive.”
According to the Commission the costs, across the EU, of the proposal would be around £3.979–£7.958 million to establish the information exchange system and £3.979–£5.173 million annually for additional enforcement effort. The setup costs for each Member State are estimated to be around £0.16– £0.24 million in addition to central community costs.
According to the Government draft impact assessment it is estimated that set-up costs for the Driver and Vehicle Licensing Agency (DVLA) and UK police forces would be around £4.50 million and around £5.70 million for the annual enforcement cost for pursuing non-resident offenders for offences in the UK arising directly from the proposed Directive. The Government has estimated annual costs of £40,000 for the DVLA in providing information to other Member States where UK-registered vehicles are detected committing offences in other Member States. The Government believes that around £1.40–£3.20 million could be recovered taking into account that 30 per cent and 70 per cent of fines are paid when requested. The Government also foresees further costs, not directly concerned to this Directive, where the UK authorities decide to carry out enforcement action under the Framework Decision. Such procedure may be used if offenders do not pay in response to a notification issued under the proposal. According to Jim Fitzpatrick “as most of the penalties concerned are fixed penalties, there would first need to be additional court action in the UK, which could cost hundreds of pounds per case and so is unlikely to be cost effective.”
In the meantime the European Parliament Transport Committee has approved, in September, the Commission proposal stressing that the existing situation is discriminatory as foreign drivers can avoid penalties and resident drivers committing similar offences have to face them. The Members of the Transport Committee are already considering the possibility to extend the new rules to other road traffic infringements such as using mobile phone while driving as well as driving whilst under the influence of drugs, hence they have called on the Commission to present, after two years of the entry into force of the Directive, a report on the issue.
The draft proposal is to be adopted under the co-decision procedure with QMV required at the Council. However, the Transport Council does not fully share the Commission and European Parliament views on the proposal for a directive on the cross-border application of sanctions for certain infringements of the Highway Code. Although the EU transport ministers have agreed on the aims of the Commission proposal several Member States are not convinced as to the appropriateness of the legal basis chosen by the Commission for its proposal as they believe that there is no Community competence on the basis of which the proposed Directive could be adopted. Germany, Denmark, Finland, Hungary, Ireland, Lithuania, Latvia, Luxembourg, Malta, the Netherlands, Poland, Romania, the UK, Slovakia, Sweden and the Czech Republic, do not agree with the legal basis chosen by the Commission as they believe that several aspects of the proposal fall under the third pillar. Consequently, they believe that such proposal should be adopted by the justice and home affairs council, unanimously, and under the consultation procedure. Moreover, if adopted under the third pillar provisions, the Commission would be unable to refer to the ECJ in case of failure to respect the obligation by member states. In the other hand, Slovenia, Austria, Belgium, Greece, Portugal and Italy favour the adoption of the proposal under the Community pillar.
Unsurprisingly, Inés Ayala Sender, the European Parliament rapporteur, on this proposal, is not pleased with several Member States rejection of the legal basis necessary for the Commission to establish its proposal. Obviously, if the legal basis is changed the European Parliament would be removed from the decision making procedure as it would lose its co-decision power. The rapporteur has said that “Parliament cannot accept being excluded from the co-decision procedure.”
The French presidency is preparing a compromise proposal to be presented at the next meeting of the Transport Council, on 9 December. The European Parliament is expecting to adopt the first reading report which supports the Commission choice of the legal basis at the November plenary session.
