COMMON POSITION (EC) No 42/94 adopted by the Council on 21 November 1994 with a view to adopting a Council Directive 94/. . ./EC, of . . ., on uniform procedures for checks on the transport of dangerous goods by road (94/C 354/01)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 75 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social Committee (2),

Acting in accordance with the procedure laid down in Article 189c of the Treaty (3),

Whereas the Community has adopted a number of measures for the establishment of an internal market comprising an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaty;

Whereas checks on the transport of dangerous goods by road are carried out in accordance with Council Regulation (EEC) No 4060/89 of 21 December 1989 on the elimination of controls performed at the frontiers of Member States in the field of road and inland waterway transport (4) and Council Regulation (EEC) No 3912/92 of 17 December 1992 on controls carried out within the Community in the field of road and inland waterway transport in respect of means of transport registered or put into circulation in a third country (5);

Whereas the Council has adopted Directive 94/. . ./EC of . . . on the approximation of the laws of the Member States with regard to the transport of dangerous goods by road (6); whereas the respective procedures for checking and the definitions relating to this type of transport should accordingly be harmonized in order for compliance with the safety standards laid down therein to be verified more effectively;

Whereas the Member States should ensure a sufficient level of checks on the vehicles concerned throughout their territory while, where possible, avoiding the proliferation of such checks;

Whereas, in the light of the principle of subsidiarity, Community action is therefore necessary to improve the level of safety of the transport of dangerous goods;

Whereas checks should be carried out using a list of common items applicable to such transport throughout the Community;

Whereas it is necessary to draw up a list of infringements deemed sufficiently serious by all Member States to result in the application to the vehicles concerned of appropriate measures depending on the circumstances or the requirements of safety, including, where appropriate, refusal to admit the vehicles concerned to the Community;

Whereas, in order to improve compliance with safety standards for the transport of dangerous goods by road, it is necessary to make provision for checks to be carried out in undertakings as a preventive measure or when serious infringements of laws on the transport of dangerous goods have been recorded at the roadside;

Whereas the checks in question must apply to all consignments of dangerous goods transported by road wholly or partly within the territory of the Member States, irrespective of the point of departure or the destination of the goods or the country in which the vehicle is registered;

Whereas, in the event of serious or repeated infringements, the competent authorities of the Member State in which the vehicle is registered or in which the undertaking is established may be asked to take appropriate measures and whereas they shall inform the requesting Member State of any follow-up measures taken;

Whereas the application of this Directive should be monitored on the basis of a report to be submitted by the Commission,

HAS ADOPTED THIS DIRECTIVE:

Article 1

1. This Directive shall apply to checks carried out by Member States on the transport of dangerous goods by road in vehicles travelling in their territory or entering it from a third country.

It shall not apply to the transport of dangerous goods by vehicles belonging to or under the responsibility of the armed forces.

2. This Directive shall not, however, affect the Member States' right, with due regard to Community law, to carry out checks on the national and international transport of dangerous goods within their territories performed by vehicles not covered by this Directive.

Article 2

For the purposes of this Directive:

- 'vehicle' shall mean any motor vehicle intended for use on the road, whether complete or incomplete, which has at least four wheels and a maximum design speed exceeding 25 km/h, together with its trailers, with the exception of vehicles which run on rails, of agricultural and forestry tractors and of all mobile machinery,

- 'dangerous goods' shall mean dangerous goods defined as such in Directive 94/. . ./EC,

- 'transport' shall mean any road transport operation performed by a vehicle wholly or partly on public roads within the territory of a Member State, including the loading and unloading of goods covered by Directive 94/. . ./EC, without prejudice to the arrangements laid down by the laws of the Member States concerning liability in respect of such operations,

- 'undertaking' shall mean any natural or legal person, whether or not profit-seeking, any association or group of persons without legal personality, whether or not profit-seeking, and any body coming under a public authority, whether itself possessing legal personality or dependent on an authority having such personality, which carry, load or unload dangerous goods or cause them to be carried and those which temporarily store, collect, package or take delivery of such goods as part of a transport operation and are located in the territory of the Community,

- 'check' shall mean any check, control, inspection, verification or formality carried out by the competent authorities for reasons of safety inherent in the transport of dangerous goods.

Article 3

1. Member States shall ensure that a representative proportion of consignments of dangerous goods transported by road is subject to the checks laid down by this Directive, in order to check their compliance with the laws on the transport of dangerous goods by road.

2. Such checks shall be carried out in the territory of a Member State in accordance with Article 3 of Regulation (EEC) No 4060/89 and Article 1 of Regulation (EEC) No 3912/92.

Article 4

1. In order to carry out the checks provided for in this Directive, the Member States shall use the checklist in Annex I. A copy of this checklist or a certificate showing the result of the check drawn up by the authority which carried it out shall be given to the driver of the vehicle and presented on request in order to simplify or avoid, where possible, subsequent checks. This paragraph shall not prejudice Member States' right to carry out specific measures for detailed checks.

2. The checks shall be random and shall as far as possible cover an extensive portion of the road network.

3. The places chosen for these checks must permit infringing vehicles to be brought into compliance or, if the authority carrying out the check deems it appropriate, to be immobilized on-the-spot or at a place designated for that purpose by the said authority without causing a safety hazard.

4. Where appropriate and provided that this does not constitute a safety hazard, samples of the goods transported may be taken for examination by laboratories recognized by the competent authority.

5. Checks shall not exceed a reasonable length of time.

Article 5

Without prejudice to other penalties which may be imposed, vehicles in respect of which one or more infringements of the rules on the transport of dangerous goods, in particular infringements listed in Annex II, are established may be immobilized either on-the-spot or at a place designated for this purpose by the authorities carrying out the check and required to be brought into conformity before continuing their journey or may be subject to other appropriate measures, depending on the circumstances or the requirements of safety including, where appropriate, refusal to allow such vehicles to enter the Community.

Article 6

1. Checks may also be carried out at the premises of undertakings, as a preventive measure or where infringements which jeopardize safety in the transport of dangerous goods have been recorded at the roadside.

2. The purpose of such checks shall be to ensure that safety conditions for the transport of dangerous goods by road comply with the relevant laws.

Where one or more infringements, in particular those listed in Annex II, have been established in respect of the transport of dangerous goods by road, the transport in question shall be brought into conformity before the goods leave the undertaking or shall be subject to other appropriate measures.

Article 7

1. Member States shall assist one another in order to give proper effect to this Directive.

2. Serious or repeated infringements jeopardizing the safety of the transport of dangerous goods committed by a non-resident vehicle or undertaking must be reported to the competent authorities in the Member State in which the vehicle is registered or in which the undertaking is established.

The competent authorities of the Member State in which serious or repeated infringements have been recorded may ask the competent authorities of the Member State in which the vehicle is registered or in which the undertaking is established for appropriate measures to be taken with regard to the offender or offenders.

The latter competent authorities shall notify the competent authorities of the Member State in which the infringements were recorded of any measures taken with regard to the transporter or the undertaking.

Article 8

If the findings of a roadside check on a vehicle registered in another Member State give grounds for believing that serious or repeated infringements have been committed which cannot be detected in the course of that check in the absence of the necessary data, the competent authorities of the Member States concerned shall assist one another in order to clarify the situation. Where, to that end, the competent Member State carries out a check in the undertaking, the other Member States concerned shall be notified of the results.

Article 9

1. Each Member State shall send the Commission for each calendar year not later than 12 months after the end of that year a report, drawn up in accordance with the model in Annex III, on the application of this Directive, including the following particulars:

- if possible, determined or estimated volume of dangerous goods transported by road (in tonnes transported or in tonnes/kilometres),

- number of checks carried out,

- number of vehicles checked by place of registration (vehicles registered nationally, in other Member States or in third countries),

- number and types of infringements recorded,

- type and number of penalties imposed.

2. The Commission shall send the European Parliament and the Council, for the first time in 1999 and subsequently at least every three years, a report on the application of this Directive by the Member States, stating the particulars in accordance with paragraph 1 above.

Article 10

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 January 1997. They shall forthwith inform the Commission thereof.

When these provisions are adopted by the Member States, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.

2. Member States shall communicate to the Commission the text of the essential provisions of domestic law which they adopt in the field governed by this Directive.

Article 11

This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.

Article 12

This Directive is addressed to the Member States.

Done at . . .

For the Council

The President

(1) OJ No C 26, 29. 1. 1994, p. 10 and OJ No C 238, 26. 8. 1991, p. 4.

(2) OJ No C 195, 18. 7. 1994, p. 18.

(3) Opinion of the European Parliament of 3 May 1994 (OJ No C 205, 25. 7. 1994, p. 55), Council common position of . . . (not yet published in the Official Journal) and Decision of the European Parliament of . . . (not yet published in the Official Journal).

(4) OJ No L 390, 30. 12. 1989, p. 18. Regulation as last amended by Regulation (EEC) No 3356/91 (OJ No L 318, 20. 11. 1991, p. 1).

(5) OJ No L 395, 31. 12. 1992, p. 6.

(6) OJ No L . . ..

ANNEX I

CHECKLIST

>START OF GRAPHIC>

1. Place of check . 2. Date . 3. Time .

4. Vehicle nationality mark and registration number . 5. Trailer/semi-trailer nationality mark and registration number .

6. Type of vehicle lorry road train articulated vehicle with platform

7. Undertaking carrying out transport/address . 8. Nationality .

9. Driver .

10. Driver's mate .

11. Consignor, address, place of loading (1) .

12. Consignee, address, place of unloading (1) .

13. Gross mass of dangerous goods by transport unit .

14. Marginal 10 011 quantity limit exceeded Yes No

15. Carried out by fixed tank removable tank tank container battery of receptacles in bulk container package

On board document(s)

16. Transport/accompanying document(s) inspected infringement established not applicable

17. Written instructions inspected infringement established not applicable

18. Bilateral/multilateral agreement / national authorization inspected infringement established not applicable

19. Vehicle type-approval certificate inspected infringement established not applicable

20. Driver's training certificate inspected infringement established not applicable

Circulation of vehicle

21. Goods authorized for transport inspected infringement established not applicable

22. Bulk goods inspected infringement established not applicable

23. Transport by tanker inspected infringement established not applicable

24. Transport by container inspected infringement established not applicable

25. Authorized goods for type of vehicle inspected infringement established not applicable

26. Prohibition of joint loading inspected infringement established not applicable

27. Handling and storage (2) inspected infringement established not applicable

28. Leakage of goods or damage to package (2) inspected infringement established not applicable (1) To be stated under 'remarks' for groupage transport operations.

(2) Check of visible violations.

29. UN number / parcel labelling / UN packaging code (1) (2) inspected infringement established not applicable

30. Vehicle and/or container lighting systems inspected infringement established not applicable

31. Tanker or bulk transport hazard label(s) inspected infringement established not applicable

Vehicle equipment

32. Tool set for temporary repairs inspected infringement established not applicable

33. At least one wedge per vehicle inspected infringement established not applicable

34. Two orange-coloured lights inspected infringement established not applicable

35. Fire extinguisher(s) inspected infringement established not applicable

36. Driver protection equipment inspected infringement established not applicable

37. Miscellaneous/remarks

38. Authority/officer having carried out the inspection

(1) To be stated under 'remarks' for groupage transport operations.

(2) Check of visible violations.

>END OF GRAPHIC>

ANNEX II

INFRINGEMENTS

For the purposes of this Directive, the following in particular shall be regarded as infringements:

(1) Goods not authorized for transport.

(2) Absence of consignor's declaration on the conformity of the goods and their packaging with transport regulations.

(3) Vehicles which, on checking, display leaks of dangerous substances due to the lack of leaktight integrity of tanks or packages.

(4) Vehicles with no type-approval certificate or with a non-regulation certificate.

(5) Vehicles lacking appropriate orange panels or with non-regulation orange panels.

(6) Vehicles without safety instructions or with inappropriate ones.

(7) Inappropriate vehicle or packaging.

(8) Driver without a regulation vocational training certificate for the carriage of dangerous goods by road.

(9) Vehicles lacking fire extinguishers.

(10) Vehicles or packages without regulation danger labels.

(11) Vehicles lacking transport/accompanying documents, or with particulars relating to the dangerous goods on board which are not in compliance with the regulations.

(12) Vehicles not covered by a bilateral/multilateral agreement or not in compliance with the agreement.

(13) Overfilling of tank.

ANNEX III

MODEL STANDARD FORM FOR THE REPORT TO BE SENT TO THE COMMISSION CONCERNING INFRINGEMENTS AND PENALTIES

Country: . Year: . . . . . . . . . . . . . . .

>TABLE>

STATEMENT OF THE COUNCIL'S REASONS

I. Introduction

On 15 December 1993 the Commission forwarded to the Council a proposal for a Directive, based on Article 75 of the EC Treaty, on uniform procedures for checks on the transport of dangerous goods by road (1).

The European Parliament delivered its opinion on first reading on 3 May 1994 (2) and the Economic and Social Committee delivered its opinion on 27 April 1994 (3).

In the light of these opinions, the Commission forwarded an amended proposal to the Council on 29 July 1994 (4).

On . . . the Council adopted its common position in accordance with Article 189c (a) of the EC Treaty.

II. Aim of the proposal

The Commission proposal was drawn up with a view to improving and ensuring compliance with the safety conditions for the transport of dangerous goods by road and eliminating barriers to the free movement of dangerous goods transported by road throughout the Community.

Its purpose is to harmonize the procedures for checks on such consignments for greater efficiency in verifying compliance with the safety standards laid down by Council Directive 94/. . ./EC on the approximation of the laws of the Member States with regard to the transport of dangerous goods by road (5). The aim of this latter Directive, hereinafter called the 'ADR framework Directive', is to transpose into Community law the European Agreement concerning the international carriage of dangerous goods by road (ADR).

III. Analysis of the common position

The common position adopted by the Council broadly corresponds to the amended Commission proposal, maintaining the safety objective by providing for checks by the roadside and at the premises of undertakings for the purpose of establishing compliance with the laws on the transport of dangerous goods by road. These checks must be performed in accordance with uniform principles and on a non-discriminatory basis, thus helping to eliminate barriers to the free movement of goods.

The common position nevertheless contains certain amendments to the Commission proposal, the major ones being as follows:

- the scope (Article 1) and the definitions (Article 2) have been aligned with those set out in the Council's common position on the ADR framework Directive,

- it is now compulsory to make a considerable proportion of such consignments subject to the checks laid down by the Directive and to perform these checks in accordance with Article 3 of Regulation (EEC) No 4060/89 and Article 1 of Regulation (EEC) No 3912/92 (Article 3),

- Member States are now obliged to use the checklist in Annex I to carry out the checks provided for in the Directive, but they remain free to carry out other specific checks (Article 4 (1)),

- preventive checks at the premises of undertakings have been introduced along with compulsory measures on the lines of those laid down in Article 5 where infringements have been established (Article 6),

- in the event of serious or repeated infringements, it is now possible to ask the Member State in which the vehicle is registered or in which the undertaking is established to take appropriate measures and to notify the results to the competent authorities of the Member State in which the infringements have been recorded (Article 7),

- mutual assistance has been limited to cases of serious or repeated infringements (Article 8),

- the annual report to be sent by the Member States to the Commission has been simplified (Article 9 (1) and Annex III) and the Commission now has to send a report to the European Parliament and the Council (Article 9 (2)),

- the checklist in Annex I has been reformulated.

IV. European Parliament amendments

1. European Parliament amendments adopted by the Council

The Council was in agreement with the amended Commission proposal which incorporated:

- amendment 1 (Article 2, fourth indent, fifth and sixth lines of the common position) incorporating into the definition of an undertaking those which temporarily store dangerous goods as part of a transport operation and which should accordingly be subject to checks,

- amendment 4 (Article 4 (3), second line) specifying the circumstances under which a vehicle may be immobilized,

- amendment 5 (Article 4 (4), third line) stipulating that analysis where required of transported goods must be performed by laboratories recognized by the competent authority.

The Council also incorporated into the common position amendment 6 (Article 5, third line) which had been rejected by the Commission.

The common position furthermore reflects the underlying approach of the Parliament's amendments 8 and 14 in that the new Article 9 (2) provides for information notified by the Member States to be used by the Commission in preparing a report on the application of the Directive and given that the Council has also noted the Commission's undertaking to look at the convergence of Member States' checking procedures in this area.

Similarly, for amendment 7 which contains a drafting amendment to Article 6 (1), the Council's wording ('checks . . . at the premises of undertakings') was just as clear as the wording suggested by the European Parliament (French drafting amendment only; does not apply to the English text).

2. European Parliament amendments rejected by the Council

The Council rejected the other two amendments proposed by the European Parliament which had been accepted by the Commission in its amended proposal.

It was the Council's view that the same implementing date should be chosen for this proposed Directive as was laid down in the ADR framework Directive. The Council

therefore adopted 1 January 1997 as the date, instead of 1 January 1996 which was suggested in amendment 9.

The Council also rejected amendment 11 which provided for a reference to marginal 10 282 of the ADR to be included in the checklist.

Since, the Council argued, Annexes A and B to the ADR were reviewed every two years in the light of scientific and technical progress, references to ADR marginals in the checklist might entail reviewing the list much more frequently.

An exception was however made for marginal 10 011 given its importance in the checking process as it lays down the quantitative thresholds for dangerous substances above which vehicles carrying such substances are obliged to comply with all the ADR requirements and cannot qualify for exemption from some of them until those maximum quantities have been complied with.

(1) OJ No C 26, 29. 1. 1994, p. 10.

(2) 6738/94 PE-RESOL 33, p. 30.

(3) OJ No C 195, 18. 7. 1994, p. 18.

(4) OJ No C 238, 26. 8. 1994, p. 4.

(5) Common position adopted by the Council on 19 September 1994 (8361/1/94 TRANS 63 PRO-COOP 22).