[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 15.5.2009

COM(2009) 225 final

REPORT FROM THE COMMISSION

Analysing the penalties for serious infringements against the social rules in road transport, as provided for in the legislation of the Member States

REPORT FROM THE COMMISSION

Analysing the penalties for serious infringements against the social rules in road transport, as provided for in the legislation of the Member States (Text with EEA relevance)

INTRODUCTION

This report analyses the penalties for serious infringements against the social rules in road transport provided for in the legislation of the Member States, as required by Article 10 of Directive 2006/22/EC[1] on minimum conditions for the implementation of social legislation relating to road transport activities.

The infringements concern two regulations. Regulation (EC) No 561/2006[2] on the harmonisation of certain social legislation relating to road transport contains very precise rules on the maximum driving times and the minimum rest periods and breaks for drivers engaged in professional transport. Regulation (EEC) No 3821/85[3] on recording equipment in road transport concerns the instalment and use of the tachograph.

Regulation (EC) No 561/2006 requires Member States to lay down rules on penalties applicable to infringements of both Regulations. The penalties have to be effective, proportionate, dissuasive and non-discriminatory.[4] Recital 26 of this Regulation states in addition that the possibility of immobilising the vehicle where serious infringements are detected should also be included within the common range of measures open to Member States. However, there is no definition in the Regulation of what should be considered a serious infringement.

Directive 2006/22/EC originally contained an Annex III with a non-exhaustive list of what is to be regarded as an infringement. This Annex III has recently been replaced by a new Annex by way of Commission Directive 2009/5/EC.[5] This new Annex III contains guidelines on the categorisation of infringements against the two Regulations.

Member States had to inform the Commission of the rules they have laid down on the penalties for infringements against the two Regulations.[6] 26 Member States had informed the Commission of their rules at the time this report was being drawn up. Portugal has not yet complied with its obligations and is therefore involved in an infringement procedure.

Types of penalties

There are different kinds of penalties mentioned in the national laws and regulations: financial penalties, immobilisation of the vehicle, driving bans and imprisonment. These penalties can also differ for drivers and for undertakings.

Financial penalties

All the Member States provide for financial penalties for infringements. The maximum fines vary appreciably between Member States, from a fixed fine of €58.23 in Malta to €5 000 and more in Austria, Cyprus, Germany and Ireland. This means that a maximum fine can be several times higher in one country than in another.

This disparity can partly be explained by the socio-economic differences between the Member States, which make the same fine dissuasive and proportionate for drivers and undertakings in one country, but not necessarily in another. However, this reasoning cannot be applied, for example, to the relatively high penalties in Spain or Hungary.

Finland has a unique approach in this respect, as the penalty is calculated on the basis of “day fines”. These “day fines” are weighted, among other factors, against the daily income and the number of children of the person to whom the penalty is applied.

Immobilisation of the vehicle

As mentioned above, Recital 26 of Regulation (EC) No 561/2006 refers explicitly to immobilisation of the vehicle as one of the measures to be taken against serious infringements. This measure can ensure, for example, that the driver takes a sufficient rest period to comply with the provisions of Regulation (EC) No 561/2006. It can also prevent undertakings from gaining a competitive advantage by not complying with the Regulation and simply paying a fine.

However, only 15 Member States informed the Commission that they provide explicitly for the possibility of immobilisation in their legislation (Bulgaria, Cyprus, the Czech Republic, Germany, Denmark, Greece, Ireland, Italy, Lithuania, Luxembourg, Poland, Romania, Spain, Sweden and the United Kingdom).

Other penalties

Seven Member States provide for imprisonment in cases of serious infringements, albeit some only where the fine is not paid (Austria, Cyprus, Denmark, France, Ireland, Luxembourg and the United Kingdom).

The legislation in some countries also includes temporary withdrawal of a driver’s driving licence (Bulgaria, Denmark, Greece, Italy and the United Kingdom) or the driver card (Slovakia).

Several Member States also apply higher or more severe penalties in cases of repeated or recurrent infringements (Austria, Bulgaria, France, Italy, Slovakia and the United Kingdom). Austrian legislation, for example, provides for the possibility of imprisonment where the person has already been penalised for a similar infringement.

Penalties for undertakings

Article 10(3) of Regulation (EC) No 561/2006 makes undertakings liable for infringements committed by their drivers, even if the infringement was committed on the territory of another Member State or a third country. In the majority of Member States (Belgium, Bulgaria, Germany, Denmark, Estonia, Greece, Finland, Hungary, Ireland, Italy, Lithuania, Latvia, Poland, Romania, Slovenia, Slovakia, Sweden and the United Kingdom), the legislation includes different penalties for drivers and undertakings, the penalties for undertakings being higher or more severe than those for the drivers.

Article 10(4) of Regulation (EC) No 561/2006 also stipulates that consignors, freight forwarders, tour operators, principal contractors, subcontractors and driver employment agencies must ensure that contractually agreed transport time schedules observe the provisions on driving times and rest periods. However, only in a few Member States does the legislation on penalties refer to these operators in the transport chain (Denmark, Estonia, Finland, Poland and Sweden). Unfortunately the analysis of the respective legislations does not show how these penalties are applied in practice.

Principle of extra-territoriality

Article 19(2) of Regulation (EC) No 561/2006 also introduced the principle of extra-territoriality: where an infringement is detected by the competent authorities in a Member State and no penalty has already been imposed for that infringement, the competent authorities are enabled to impose a penalty even where the infringement has been committed on the territory of another Member State or of a third country. Due to the principle of non-discrimination, the penalty has to be the same as if the infringement had been committed on the territory of the Member State that detected the infringement.

While this principle gives more scope for enforcement of the social legislation in road transport, it can have a negative side effect as long as Member States apply very different penalties for the same infringement. Hauliers who have committed an infringement might prefer to pay the penalty for this infringement in a Member State that applies very low fines rather than risk a very high penalty in another Member State. This could give them a competitive advantage over other undertakings complying with the Regulations.

National penalty systems

According to the information provided to the Commission by the Member States, the national systems of penalties differ widely. A basic distinction can be made between Member States whose legislation does not specify any differences between the different infringements and Member States whose legislation distinguishes between specific infringements and applies different levels of penalties to these infringements.

Systems without differentiation of penalties

The legislation of some Member States simply sets maximum and sometimes minimum levels of penalties applicable to infringements in general. It is thus not possible to analyse the penalties for serious infringements. Some Member States have informed the Commission only of these maximum and sometimes minimum levels (Austria, the Czech Republic, Ireland, Luxembourg and the United Kingdom). Malta has a set fine for infringements (€58.23).

Systems with differentiation of penalties

In the other Member States, the legislation distinguishes at least between some different kinds of infringements and applies different penalties to them. It has to be noted that not all Member States that apply different penalties to different infringements have different levels of fines for the same types of infringement.

Infringements against the provisions on driving time and rest periods of Regulation (EC) No 561/2006

In some of the Member States with a differentiated system, the legislation contains a detailed system of categorisation of infringements to the driving and rest times provided for in Regulation (EC) No 561/2006. Two or more levels for the same kind of infringement are distinguished and specific fines are set for each level. The rules stipulate a higher penalty, for example, when the daily driving time is exceeded by two hours than when the daily driving time is exceeded only by one hour.

The table in Annex I has been produced on the basis of the information provided to the Commission. It compares, for Member States that provide for differentiated penalties, the fines applied to the infringements against Articles 6-8 of Regulation (EC) No 561/2006, as defined in the new Annex III to Directive 2006/22/EC.

It also shows the differences in the amounts of the fines applied by the different Member States. In extreme cases, the maximum amounts for specific infringements can be more than ten times higher in one country than in another. Exceeding the daily driving time by more than two hours can lead to a fine of up to €4 600 in Spain, while in Greece the maximum fine is €400.

How the levels are determined in the various Member States is also different. The limits are expressed either in minutes or hours or in percentages. Some Member States provide for only two different levels, e.g. Estonia, France and Slovakia. Others have more levels, e.g. Hungary, with 5 levels for exceeding the daily driving time: by 5%, by 5-10%, by 10-15%, by 15-20% or by more than 20%.

Spanish legislation, for example, sets specific amounts for each hour exceeding the two-weekly driving time, which is limited in Regulation (EC) No 561/2006 to 90 hours: a driving time of more than 110 hours would lead to a penalty of €1 580, and a driving time of more than 111 hours to a penalty of €1 620, both in addition to immobilisation of the vehicle.

Where there is provision for more than two levels, the rise in the penalties applied can be either linear or progressive. In the Netherlands, for example, the penalty for exceeding the weekly driving time is €110 per hour, whereas in Greece the penalty for exceeding the daily driving time by two hours is more than double the penalty for exceeding it by one hour.

Belgium has a particular system for determining penalties for exceeding the daily driving times and the uninterrupted driving time, which takes two parameters into account. In the case of the daily driving time, the longest period of rest during the period of the daily driving time determines the level of the penalty. Thus, exceeding the daily driving time by four hours leads to a higher penalty (€450) when the driver has had an uninterrupted rest period of less than three hours than when the driver has had an uninterrupted rest period of six hours (€310).

Where Member States include this kind of distinction between infringements, it is possible to deduce what they consider to be more serious infringements. It can thus be concluded that the rules on infringements to the driving and rest times are not that different from one Member State to another when it comes to considering what infringements have to be regarded as more serious than others, even if some minor differences can be noted. As an example of these differences, an infringement that would be considered by the categorisation contained in the new Annex III to Directive 2006/22/EC as a minor infringement on breaks leads in Belgium to a lower penalty than a minor infringement on daily rest; in the Netherlands, the same penalty is applied to both infringements while in Poland there is a higher penalty.

In general, however, it goes without saying that the more the maximum driving time is exceeded or the less the minimum rest period is observed, the more serious the infringement.

The differences are mainly in two aspects: the different levels of the different penalties and the amounts of fines set for the infringements. As stated above, determination of the levels varies appreciably, being based on hours/minutes or percentages, and there are different numbers of levels. As regards the amounts of the penalties, the differences are very clear, as shown in Annex I.

Infringements to Regulation (EEC) No 3821/85 (tachograph regulation)

While the rules for infringements against Regulation (EC) No 561/2006 are fairly similar in the Member States in terms of what is to be regarded as more serious, the situation for infringements to Regulation (EEC) No 3821/85 is different.

Where Member States’ legislations contain different categories of infringements, they generally differ significantly from one Member State to another and also from the categorisation contained in the new Annex III to Directive 2006/22/EC. From the additional information submitted by the Member States, it appears that significant differences exist not only in the level of the fines that are applicable but also in the way infringements are categorised.

The table in Annex II shows these differences of categorisation. For some infringements that Directive 2006/22/EC considers to be “very serious”, some Member States reported the lowest level of penalty for infringements against Regulation (EEC) No 3821/85. This is the case, for example, where a driver holds more than one valid driver card (infringement G7 in Annex III to Directive 2006/22/EC). In this instance, Estonia, Bulgaria and Lithuania apply the lowest level of penalty. Other examples are where the switch mechanism of the tachograph is not correctly used or where the driver is not able to produce records of the driver card if he or she holds one (infringements G22 or I4).

On the other hand, for the vast majority of infringements considered to be minor infringements in Directive 2006/22/EC, most Member States do not apply their lowest level of penalty. In the case of a driver not carrying enough paper for printouts, for example, an infringement that is categorised as a minor infringement in Directive 2006/22/EC (infringement G5), Hungary applies the highest level of fine.

Only for infringements involving fraud to the tachograph (infringements J1 to J3) and cases of undertakings not keeping record sheets (infringements G6 and G10) is categorisation similar in a majority of Member States, the highest level of penalties being applied to these very serious infringements.

Similarly to Regulation (EC) No 561/2006, the amounts of the fines applied differ widely for the infringements to Regulation (EEC) No 3821/85, including for the maximum fines applied. Manipulation of the tachograph, for example, is penalised with a fine of up to €586 in Lithuania, but €2 460 in Poland, although in both cases the maximum fine is imposed. In other countries, the fine can be even higher: in Spain, the fine for such infringements is €4 601, in Italy up to €6 232, and in France up to €30 000 (with the additional possibility of imprisonment of up to 1 year).

It can thus be concluded that, for infringements against Regulation (EEC) No 3821/85, not only does the amount of the fine applied for serious infringements vary significantly between Member States, categorisation, namely, the definition of what is considered to be a serious infringement, also does.

Conclusions

The rules on penalties applicable to serious infringements of the social legislation vary appreciably between Member States as regards the types of penalties, the level of fines and the categorisation of infringements.

While all Member States use fines as a penalty, not all of them provide for the immobilisation of vehicles or imprisonment, for example. In some Member States, withdrawal of a driver’s driving licence or driver card is possible.

When looking at how the Member States grade the different types or levels of infringements, the situation becomes even more complex. The amounts of the fines vary significantly between Member States, in extreme cases by as much as 1:10. These differences can only be partly explained by the socio-economic differences that make the same fine proportionate and dissuasive in one country but not necessarily in another.

While for infringements against the driving times and rest periods, it is rather clear which infringements has to be considered to be more serious than another, the categorisation of infringements varies considerably between Member States for infringements against Regulation (EEC) No 3821/85. Some infringements are seen as serious infringements in one country, but not necessarily in another.

Moreover, the penalties applied for infringement of the rules of Regulation (EEC) No 3821/85 do not correspond in many Member States with the Community guidelines on the categorisation of infringements as contained in Commission Directive 2009/5/EC amending Annex III to Directive 2006/22/EC.

For drivers and undertakings engaged in international transport, it is therefore very difficult to receive a clear message concerning the gravity of possible infringements when they do not comply with certain provisions of Regulation (EC) No 561/2006 and Regulation (EEC) No 3821/85, as the penalties they risk in the different Member States give contradictory feedback.

The Commission considers this situation resulting of the decisions of the legislators to be unsatisfactory in terms of equal conditions for drivers and undertakings. The new Annex to Directive 2006/22/EC, introduced by Commission Directive 2009/5/EC, provides a basis for a common understanding of what should be considered as serious infringement and what not. Member States are encouraged to take the necessary steps to provide for more harmonised application of the social rules in road transport and thus to improve observance of the social rules in road transport.

The Commission will continue to work on this issue, in particular by supporting dialogue between Member States concerning national interpretation and application of the social rules in road transport through the Committee foreseen in Regulation (EC) No 561/2006, and taking into account the limits of the competence that Member States and the legislators have decided to give to the Commission.

ANNEX I

Overview of the fines applied to infringements against Article 6-9 of Regulation (EC) No 561/2006 in Member States providing in their legislations for different fines for different levels of infringements

Serious infringement |

Minor infringement |

ANNEX III

Overview of the legal acts in the Member States

MEMBER STATE | LEGISLATIVE ACTS |

Austria | 57. Bundesgesetz, mit dem das Kraftfahrgesetz 1967 geändert wird (28. KFG Novelle) |

Belgium | Arrêté royal du 27 Avril 2007, Moniteur Belge du 7 Mai 2007 |

Bulgaria | Chapter 8 of Road Transport Act |

Cyprus | Monitoring of the Driving and Rest Hours of Drivers of Certain Vehicles Act 2007 (Law 86(I)/2007) |

Czech Republic | §35 of the Act No. 111/1994 Coll., on Road Transport as amended and the Act No. 200/1990 Coll., on offences as amended |

Germany | Fahrpersonalgesetz (as amended of 6.7.2007) |

Denmark | Order containing provisions on driving and rest times in road transport BEK No 328 of 28.3.2007, Consolidated Act No 1100 of 8.11.2006 |

Estonia | Amendments to the Traffic Act adopted by the Estonian Parliament on 20 September 2007 |

Greece | Law 3446/2006 on the organisation and operation of vehicle traffic control authorities – reforms concerning passenger transport and other provisions (Government Gazette 49/A) |

Spain | Resolution of 19 April 2007 (BOE 10-05-2007) and Ley 16/1987 de 30 de Julio, de ordenacion de los transportes terrestres |

Finland | Road traffic act and Vehicles act |

France | Contraventions: Article R48-0 du code de procédure pénale et le décret n° 86/1130 du 17 octobre modifié Délits: Ordonnance 58/1310 du 23 décembre 1958 modifié |

Hungary | §20 (1) of law no. 1/1988 as last amended and §1 of government decree 557/2007 (III.31) |

Ireland | European Communities (Road Transport)(Working Conditions and Road Safety) Regulations 2008 (S.I. No. 62 of 2008) |

Italy | Highway Code and Law 286/2006 of 29.11.2006 |

Lithuania | Article 142 and 1424 of the Lithuanian Administrative Infringement Code |

Luxembourg | Règlement grand-ducal du 23 mars 2007 |

Latvia | Administrative Offences Code |

Malta | Motor Vehicles (Carriage of Goods by Road) Regulations (65.19) |

Netherlands | Policy rules in respect of imposing fines under the Working Hours Act and Working hours (Transport Workers) Decree (road transport) |

Poland | Road Transport Act of 6 September 2001 Act of 29 July 2005 on the digital tachograph system |

Portugal | Not yet adopted |

Romania | Ordonanta de govern Nr 37/2007 |

Slovenia | Act on Working Time and Compulsory Rest Periods of Persons Performing Mobile Road Transport Activities and on Recording Equipment in Road Transport |

Slovakia | Act on working time in transport |

Sweden | Ordinance (2004:865) on driving times, rest periods and tachographs, etc. |

United Kingdom | Part VI of the Transport Act 1968 (as amended) |

[1] Directive 2006/22/EC of the European Parliament and of the Council of 15 March 2006 on minimum conditions for the implementation of Council Regulations (EEC) No 3820/85 and (EEC) No 3821/85 concerning social legislation relating to road transport activities, OJ L 102, 11.4.2006, p. 35.

[2] Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85, OJ L 102, 11.4.2006, p.1.

[3] Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport, OJ L 370, 31.12.1985, p. 8.

[4] Article 19(1) of Regulation (EC) No 561/2006.

[5] Commission Directive 2009/5/EC of 30 January 2009 amending Annex III to Directive 2006/22/EC of the European Parliament and of the Council on minimum conditions for the implementation of Council Regulations (EEC) Nos 3820/85 and 3821/85 concerning social legislation relating to road transport activities, OJ L 29, 31.1.2009, p.45.

[6] Pursuant to Article 19(1) of Regulation (EC) No 561/2006.

[7] According to Commission Directive 2009/5/EC amending Annex III to Directive 2006/22/EC; VSI = very serious infringement, SI = serious infringement, MI= minor infringement

[8] Hungary: As the categorisation is based on percentages, the categories do not exactly correspond to the harmonised categorisation.

[9] Slovenia: Fines foreseen for drivers.

[10] According to Commission Directive 2009/5/EC amending Annex III to Directive 2006/22/EC; VSI = very serious infringement, SI = serious infringement, MI= minor infringement