In March 2008, the European Commission adopted a proposal for a Directive facilitating cross-border enforcement in the field of road safety. Whereas the European Parliament has supported the Commission’s choice of legal basis – “transport policy”, Member States were divided over this issue. Several Member States were not convinced as to the appropriateness of the legal basis chosen by the Commission. In fact, several Member States, including the UK, have stressed that several aspects of the proposal fall under the third pillar, consequently, the proposal should be adopted by the justice and home affairs council, unanimously, and under the consultation procedure.

However, in the meantime, the Lisbon Treaty, entered into force, hence, whether it is based on the "transport policy" or in the “police cooperation” provisions, the proposal would be subject to the ordinary legislative procedure and QMV in the Council. Nevertheless, being based on ‘police co-operation' chapter means that the UK may decide whether it wants to opt in or opt out from the proposal.

This proposal has been a priority for the Belgian Presidency. In fact, the Belgian Presidency ‘s draft compromise represents an improvement to the Commission proposal, as it has proposed to change the legal basis from ‘transport' Article 91(1)(c) TFEU to the ‘police co-operation', Article 87(2) TFEU. Nevertheless, the Transport Council has negotiated the proposal.

On 2 December, the Transport Council "concluded on a political agreement" on the proposal. It seems that a “proper political agreement” would be achieved once the UK and Ireland have decided whether to opt-in or opt out. The Council still has to confirm today’s agreement by adopting its common position, which will be then sent to the European Parliament for a second reading. Once there is an agreement on the final text, and the proposal is adopted, Member states will have two years to transpose the directive into national law, after it enters into force.

Now, the Government has three months to decide whether or not to opt into the proposal. The Parliamentary Under-Secretary of State, Department for Transport , Mike Penning, has said to the European Scrutiny Committee that the Government would take into account road safety, implementations costs as well as the proposal implications for the UK sovereignty. The UK does not have a higher proportion of non-resident traffic from neighbouring countries as other Member States and the proposal would entail undue burdens for the Driver and Vehicle Licensing Agency (DVLA) and UK police forces, consequently the Government should opt out.


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 original draft proposal would have covered offences such as speeding, driving under the influence of alcohol, not using a seat belt, and failing to stop at a red light. The scope of the proposal has been widen, hence it now covers further offences, including driving under influence of drugs, not wearing safety helmets, use of forbidden lanes, illegal use of a mobile phone while driving.

The Commission has proposed the creation of a EU electronic data exchange network, so that that the Member State of offence has access to vehicle registration data (VRD) of the Member State of registration, 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. Under the Commission’s proposal, 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 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. Under the Commission’s proposal “the format of the data exchanged” as well “the technical procedures for electronic exchange of the data between Member States” would have been decided through the comitology procedure.

The Council has noted that under the framework of the "Prum Decisions", Member States are required to grant each other access to their VRD, consequently according to the compromise text “The provisions concerning the technical specifications and the availability of automated data exchange set out in the Prum Decisions should as far as possible be taken on board in this Directive.” Member States would have, therefore, mutual access to each others' vehicle registration data.

Each member State has to designate a contact point for the automated searching of VRD. In the UK it would be the DVLA.

Member States will have to comply with the provisions of the "Prüm Decisions"relating to information exchange concern automated searching of DNA profiles, dactyloscopic data and vehicle registration data (VRD) by 26 August 2011. It is important to mention that under the Council Decision 2008/615/JHA (Prum Decision) 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” and not all traffic offences are considered criminal offences and it also differs from member state to member state.

Under the Belgian Presidency draft compromise text, member states would be required to allow contact points of other member states to have access and conduct automated searches on data relating to vehicles and data relating to holders or owners of the vehicle. Such searches would have to be conducted in accordance to Council Decision 2008/616/JHA. These searches can only be conducted by the Member State of offence national contact point with a full registration number.

Under the present draft proposal “The Member State of offence shall … only use the data obtained for the purpose of investigating who is the person responsible, under national law, for a road safety related traffic offence.

The European Vehicle and Driving Licence Information System (Eucaris) software application is already compulsory for the Member States under the Prum decisions, hence, it seems, it would be “the technical basis for the data exchange” under the present proposal.

According to the compromise text, the member state where the traffic offence took place, once the holder is identified or “the otherwise identified person of the road safety related traffic offence in accordance with the law of the Member State of offence", will send a letter informing he/she of the offence as well as legal consequences. Such letter shall include information as regards the nature of the offence and the place, date and time of it. The Member State of offence may use the template established by the proposal. The information letter should be sent in the language of the vehicle registration document so that the addressee can understand and reply to it.

The Compromise text provides that “all relevant provisions on data protection set out in Council Decision 2008/615/JHA and in Council Decision 2008/616/JHA shall also apply to personal data processed under this Directive.” However, the Council Decision on the Prum Treaty has been criticized, by Peter Hustinx, European Data Protection Supervisor, for breaching privacy rights of European citizens. Moreover, such proposal entails an administrative burden for the Government. The proposal would entail financial costs particularly to the DVLA and police forces.

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. Hence, the national law of the Member State of offence will apply as regards the nature of the offence and penalties. In the other hand the draft directive will apply in spite of the qualification of those offences as "administrative" or “criminal" offences under national law.

However, it is important to recall that according to the action plan on the Stockholm programme, the Commission is planning to present a Legislative proposal on mutual recognition of financial penalties, including those related to road traffic offences, in 2011. Furthermore, in order to ensure compliance with EU policies in general and, more specifically, improving road safety the Commission believes that it should be possible to implement certain fines, which can be criminal or administrative, between Member States.

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. The majority of the Member States have not yet transposed the framework decision and because it was a third pillar instrument the Commission had not power to start infringement procedures against the Member States. However, the situation has changed under the Lisbon Treaty and 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.”

In order to inform drivers, the Commission will publish on its website a summary of the traffic rules in force in all EU Member States and in all official EU languages .

In 2008 the Commission has estimated the costs of the proposal 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 former Government draft impact assessment the 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. Moreover, it 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. It was believed 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 Coalition Government is drafting a new impact assessment, Mike Penning has said to the European Scrutiny Committee that “the level of costs would depend on the number of offences committed by non-resident vehicles in the UK” as well as “by UK vehicles in other Member States.” Moreover, he stressed that “costs would be offset by the additional financial penalties recovered and by the value of any resulting reduction in the number of deaths and injuries caused by road accidents.” Nevertheless, the government is particular concerned with the financial implications of the draft proposal.

It is important to mention that the former Government has not conduct a proper impact assessment before allowing the Prüm Decisions to be incorporated into EU law. According to a provisional estimative the start up costs for the exchange of DNA, fingerprint and vehicle registration data would be around £31 million. However, no clear figures have been provided yet on the annual cost of running the Prüm system. The UK taxpayers are likely to face a huge bill for the implementation and operation of the Prum systems.