Following a first-reading agreement, the European Parliament formally approved yesterday (11 February) the draft directive facilitating cross-border exchange of information on road safety related traffic offences, which has now a new legal basis, as required by the European Court of Justice, which annulled the previous directive on the grounds of an incorrect legal basis. This ruling has overturned the UK opt out and the Government is being forced to accept the proposal replacing the annulled directive. The Council is set to approve the proposal this spring so it can officially enter into force before 5 May 2015.

It is important to recall that the European Commission proposed the original draft directive in 2008 using as a legal basis the EU’s competence for transport policy. Several Member States, including the UK, noting that several aspects of the proposal fell under the then third pillar, argued that the proposal should have been adopted by the justice and home affairs council, unanimously, and under the consultation procedure. In fact, following a unanimous agreement, the member states were able to change, during negotiations, the legal basis from transport policy to police co-operation. However, as the Lisbon Treaty had entered into force the proposal was no longer subject to the consultation procedure and unanimity in the Council but to the ordinary legislative procedure and QMV. Nonetheless, the change of legal basis has allowed the UK Government to opt out from the proposal. The European Parliament and the Council adopted the Directive in October 2011 using Article 87(2) TFEU as the legal basis.

Unsurprisingly, the Commission did not agree with this change and brought an action of annulment before the European Court of Justice on the ground that the directive had been adopted on the wrong legal basis. The Council reiterated its position that the aim of the Directive is to improve road safety but “by deterring certain types of behaviour regarded as dangerous,” which “are necessarily ‘criminal’ matters and cannot be classified as road safety related norms within the meaning of Article 91 TFEU.” In May 2014 the European Court of Justice agreed with the European Commission as it ruled, “Directive 2011/82 is a measure to improve transport safety within the meaning of Article 91(1)(c) TFEU” and “it should have been adopted on the basis of that provision.” The Court annulled the Directive but has decided to maintain its legal effects until the entry into force of a new directive based on Article 91(1)(c) of the TFEU, but not for a period longer than one year. The change in legal basis means that the directive, once adopted, will apply to all member states, including the UK. The UK would be then required to transpose the directive into national law.

It did not take long for the Commission to present a new proposal, based on the EU transport policy, so it could be adopted before the one-year deadline set up by the Court. The Commission put forward the same proposal with the exception of the legal base, which is now Article 91(1)(c) TFEU (transport policy), and no longer provides for the non-application of the Directive to the UK, Ireland and Denmark.

The new draft directive, as the previous one, set ups a procedure for the exchange of information between Member States in relation to eight traffic offences, speeding, non-use of a seat-belt, failing to stop at red lights, drink driving, driving under the influence of drugs, failing to wear a safety helmet, use of forbidden lanes and illegally using a mobile telephone or any other communications device, while driving.

Hence, Member States, where one or more of the above-mentioned offences have taken place, and have not been sanctioned, would be allow to have access to vehicle registration data (VRD) of the Member State of registration, with the aim of identifying the holder or owner of a vehicle. Member States would be required to designate a contact point and grant each other’s national contact points access to conduct automated searches on data relating to vehicles and their holders or owners. Member States would have, therefore, mutual access to each other’s vehicle registration data in order to determine the person liable for road traffic offences. Then, the authorities of the member state where the traffic offence took place would be able to send out a notification to the owner or holder of the vehicle involved in the offence containing information on the nature of the traffic offence, the place, date and time of the offence as well as the sanction and a reference to the national law infringed.

The Government has not opted in to the original directive because it was particularly concerned about the measure set up and implementation costs. According to the Government the proposal put disproportionate burdens on Member States enforcement, driver licensing and vehicle registration authorities. The new proposal, as the previous one, will allow law enforcement agencies, from the other member states, to have access to data relating to British’s vehicles and drivers and it would entail undue burdens for the Driver and Vehicle Licensing Agency (DVLA) and UK police forces. Yet, without the opt out, there is not much the Government can do to prevent its application in the UK, as the proposal is subject to the ordinary legislative procedure and QMV in the Council.

All Member States, with the exception of the UK, Ireland and Denmark, have agreed to the measure and have already started transposing the original directive into national law, consequently the legislative procedure has been speed up. There were just fast-track negotiations, as the EU institutions were rushing to adopt the draft directive before the deadline set up by the ECJ.

The Government was unable to achieve postponement of the Council decision on a general approach but it was able to secure a two-year period for transposition, until May 2017, as the other Member States had originally.

The Government has expressed concerns over pursuit of registered keepers for fines, transfer of court cases between Member States, data protection, costs of the mechanism and the relationship to Prüm Council Decisions on data exchange however these issues were not addressed. The other Member States were not willing to change the new proposal.

The Parliamentary Under-Secretary of State, Department for Transport, Robert Goodwill, explained to the European Scrutiny Committee that it was impossible “to obtain any pause in the timetable for discussion and agreement of this proposal”. The Transport Council reached a general approach last October and the Government abstained on it. At this meeting, the UK and Ireland issued a joint minute statement expressing their disappointment as “they have not been given sufficient time in order to properly consider the impact of the proposal, including potential costs on courts which would have to enforce any subsequent prosecutions pursuant to the new measure.” Then, the European Parliament and Council reached an early agreement, only five months after the Commission put forward its proposal.

The government cannot veto such proposal and the proposal will be adopted even if the UK, Ireland and Denmark vote against it. It seems that the government will abstain on it. The Government decided to opt out from the original proposal because it was not in the UK interest to take part but soon would be forced to accept it. Due to the ordinary legislative procedure and QMV, the Government would be forced to accept this EU measure against the national interest. This clearly shows that the European Scrutiny’s recommendation for a unilateral veto should be introduced as soon as possible. It is important to recall that Bill Cash’s Sovereignty Bill introduces a unilateral veto over EU legislative proposals. In fact, it could ensure that all EU proposals that are adopted despite the Government opposition “shall not form part of the law applicable in any part of the United Kingdom”.

It is important to note that the EU has already adopted, and the Commission is planning to put forward further proposals, on the definition of criminal offences and sanctions to ensure EU policies, such as road transport, data protection, customs rules, environmental protection, fisheries policy and internal market policies, are effectively implemented and properly enforced. In these cases national legislation would have to provide for the types and levels of sanctions that Brussels considers necessary to enforce EU policies. It should be mentioned that the UK’s opt out does not cover substantive criminal law measures as the legal basis used might not be Article 83 (2) TFEU but the legal basis concerning the policy in question, which is out of the Protocol 21. Ultimately, it would be for the CJEU to decide on the appropriateness of a legal basis and whether it may trigger Protocol 21, and it will do so with the objective of the uniform application and effectiveness of EU law.

The UK and Ireland in their joint minute statement also expressed concern over the possible precedent set by the Court of Justice decision for future measures, they stated “The United Kingdom and Ireland note the judgment of the Court of Justice that Directive 2011/82/EU should have had a transport legal base (Article 91(1)(c) TFEU) rather than a police co-operation legal base (Article 87(2) TFEU), in light of its aim and content. It remains the view of the United Kingdom and Ireland that matters which do pertain to the enforcement of criminal offences should be considered as being brought forward pursuant to Article 87 TFEU. In this regard, we note the possibility of a future review of this measure considering such aspects as the harmonisation of road traffic rules and enforcement and would like to make clear that where a proposed measure contains content which would be an exercise of competence by the Union pursuant to Title V Part III TFEU, then Protocol 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice will apply.”