The European Court of Justice has recently annulled the directive on cross-border exchange of information on road safety related traffic offences. This ruling is not good news as it has overturned the UK opt out, consequently the Government would be forced to accept any European Commission proposal replacing the annulled directive.

In 2008 the European Commission put forward a proposal for a Directive facilitating cross-border enforcement in the field of road safety. The main aim was to 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 has not taken place while they were in the country where the offence occurred. The Commission used as a legal basis the EU’s competence for transport policy. Several Member States, including the UK, were not convinced as to the appropriateness of the legal basis chosen as they noticed that several aspects of the proposal fall under the Treaties third pillar, hence, the proposal should have been adopted by the justice and home affairs council, unanimously, and under the consultation procedure. The member states were able to change, during negotiations, the legal basis from Article 91(1)(c) TFEU (transport policy) to Article 87(2) TFEU (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. However, in January 2012, the European Commission 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 Commission believes that Article 87(2) TFEU does not constitute the appropriate legal basis as it may only be used “for measures specifically related to the prevention or detection of ‘criminal offences’.” The European Commission argued that the Directive is aiming at improving road safety, consequently its goal and content “fall within the field of transport policy”, thus it should have been based on Article 91(1)(c) TFEU. The Council reiterated its position that the aim of the Directive provisions 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.” According to the Council the Directive “seeks specifically to facilitate the detection of persons who have committed cross-border offences relating to road safety” and “aims precisely to collect information concerning offences, in order to help deter them, which are measures for which the European Union has competence under Article 87 of the TFEU.”

The European Court of Justice agreed with the European Commission that the directive was adopted on the wrong legal basis. The Court examined both the aim and the content of the directive to determine whether it could validly be adopted on the basis of police cooperation. It held that the main aim of the directive is to improve road safety. The Court pointed out that the “directive sets up a system for the cross-border exchange of information on road safety related traffic offences” but stressed “that the precise aim of establishing that system is to enable the European Union to pursue the goal of improving road safety.” Then, the Court noted that the “directive sets up a procedure for the exchange of information between Member States in relation to eight identified road safety related traffic offences” but found that “the system for the exchange of information between the competent authorities of the Member States set up by the directive provides the means of pursuing the objective of improving road safety”. Consequently, the Court concluded “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 also pointed out that the directive “is not directly linked to the objectives of police cooperation.” Hence, the Court held “that Directive 2011/82 could not validly be adopted on the basis of Article 87(2) TFEU” and decided to annul it. Moreover, at the European Commission request, the Court has decided to maintain the effects of the directive. Noting that “the annulment of the directive without maintaining its effects could have negative consequences for European Union transport policy”, the Court has decided to maintain the legal effects of the annulled directive 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 European Commission has already announced that it will present a new proposal, based on the EU transport policy, in the coming months, so it can be adopted before the one-year deadline set up by the Court. Hence, we can just expect fast-track negotiations.

The UK, as well as Ireland and Denmark, opt out from the original proposal but that would no longer be possible. The new proposal will be adopted on a different legal basis, Article 91(1)(c) TFEU (transport policy), and it will apply to all member states. The UK would be then required to transpose the directive into national law.

The Commission will put forward a very similar proposal. Hence, the new draft directive would set up a procedure for the exchange of information between Member States in relation to eight traffic offences, including speeding, non-use of a seat-belt, failing to stop at a red traffic light, driving under the influence of alcohol and drugs, failing to wear a safety helmet, use of forbidden lanes and illegally using a mobile telephone while driving. The main purpose of the directive would be the same, to allow Member States, where one or more of the above-mentioned offences have taken place, and have not been sanctioned, 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.

It is important to recall that under the Prum Decisions Member States are required to allow “national contact points” of other member states to access “national vehicle registration data, with the power to conduct automated searches in individual cases” but for “the prevention and investigation of criminal offences” but not all traffic offences are considered criminal offences and they also differ from member state to member state.

The Government has not opted in to the directive, which has now been annulled by the ECJ, 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. In 2011, the Government has estimated the costs of the proposal around £90.91 million over ten years. At the time, the Government also foresaw further costs, not directly concerned to this Directive, but under the Framework Decision on the Mutual Recognition of Financial Penalties, which can be used if offenders do not pay in response to the above-mentioned notification. Moreover, as Timothy Kirkhope recalled, “…the directive prosecutes vehicle owners, rather than the offending driver, and it seeks to implement fines when other deterrents – such as points on a licence – may be more effective”. The new proposal, as the previous one, would 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. According to the Daily Mail, AA president, Edmund King said, ‘Our Government should indeed oppose this at all costs. It’s a nightmare. It opens up a hornets’ nest.” He stressed, “There is not a level playing field across Europe in terms of penalties and regulations and levels of enforcement. Here in Britain we have speed awareness courses for first-time speeders. Other countries don’t.” In fact, the European Commission does not take into account that member states have different traffic rules.

But, without the opt out, there is not much the Government can do to prevent its application in the UK. The proposal will be 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 measures and have already started transposing the directive, which has been recently annulled, into national law. The proposal will be renegotiated but the legislative procedure would be speed up, as the European Parliament and Council are likely to reach an early agreement. The government cannot veto such proposal and is unlikely to form a blocking minority against it. The proposal will be adopted even if the UK, Ireland and Denmark vote against it. In fact, the proposal is likely to be adopted without a formal vote. The government would be either outvoted or forced to accept it by consensus. The Government decided to opt out from the original proposal because it was not in the UK interests to take part but soon would be forced to accept a similar one. 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. It provides,“where, on a motion supported by not fewer than 100 Members, each House of Parliament passes a resolution in identical terms instructing a Minister of the Crown to vote against the adoption of a European Union initiative or proposal, the Minister shall so vote;” In fact, it would 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”.