Position (EU) No 8/2011 of the Council at first reading with a view to the adoption of a Directive of the European Parliament and of the Council facilitating the cross-border exchange of information on road safety related traffic offences Adopted by the Council on 17 March 2011
Date: 2011-03-17
Institutions: Council of the European Union
Subjects: administrative offence, disclosure of information, exchange of information, road safety








CE2011136EN.01000101.xml










6.5.2011   


EN


Official Journal of the European Union


CE 136/1





POSITION (EU) No 8/2011 OF THE COUNCIL AT FIRST READING
with a view to the adoption of a Directive of the European Parliament and of the Council facilitating the cross-border exchange of information on road safety related traffic offences
Adopted by the Council on 17 March 2011
2011/C 136 E/01
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 87(2) thereof,
Having regard to the proposal from the European Commission,
Acting in accordance with the ordinary legislative procedure (1),
Whereas:






(1)


The Union is pursuing a policy to improve road safety with the objective of reducing fatalities, injuries and material damage. An important element of that policy is the consistent enforcement of sanctions for road traffic offences committed in the Union which considerably jeopardise road safety.










(2)


However, due to a lack of appropriate procedures and notwithstanding existing possibilities under Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime (2) and of Council Decision 2008/616/JHA of 23 June 2008 on the implementation of Decision 2008/615/JHA (3) (the ‘Prüm Decisions’), sanctions in the form of financial penalties for certain road traffic offences are often not enforced if those offences are committed with a vehicle which is registered in a Member State other than the Member State where the offence took place. This Directive aims to ensure that even in such cases, the effectiveness of the investigation of road safety related traffic offences should be ensured.










(3)


In order to improve road safety throughout the Union and to ensure equal treatment of drivers, namely resident and non-resident offenders, enforcement should be facilitated irrespective of the Member State of registration of the vehicle. To this end, a system of cross-border exchange of information should be put in place for certain identified road safety related traffic offences, regardless of their administrative or criminal nature under the law of the Member State concerned, granting the Member State of the offence access to vehicle registration data (VRD) of the Member State of registration.










(4)


A more efficient cross-border exchange of VRD, which should facilitate the identification of persons suspected of committing a road safety related traffic offence, may increase the deterrent effect and induce more cautious behaviour by the driver of a vehicle that is registered in a Member State other than the Member State of the offence, thereby preventing casualties due to road traffic accidents.










(5)


The road safety related traffic offences covered by this Directive are not subject to homogeneous treatment in the Member States. Some Member States qualify such offences under national law as ‘administrative’ offences while others qualify them as ‘criminal’ offences. This Directive should apply regardless of how those offences are qualified under national law.










(6)


In the framework of the Prüm Decisions, Member States grant each other the right of access to their VRD in order to improve the exchange of information and to speed up the procedures in force. The provisions concerning the technical specifications and the availability of automated data exchange set out in the Prüm Decisions should, as far as possible, be included in this Directive.










(7)


Advantage should be taken of the fact that the European Vehicle and Driving Licence Information System (Eucaris) software application, which is mandatory for Member States under the Prüm Decisions as regards VRD, provides for expeditious, secure and confidential exchange of specific VRD between Member States. That software application should therefore be the basis for the data exchange under this Directive and should, at the same time, also facilitate the reporting by Member States to the Commission.










(8)


The scope of Eucaris is limited to the processes used in the exchange of information between the national contact points in the Member States. Procedures and automated processes in which the information is to be used, are outside the scope of Eucaris.










(9)


The Information Management Strategy for EU internal security aims at finding the most simple, easily traceable and cost-effective solutions for data exchange.










(10)


Member States should be able to contact the owner, the holder of the vehicle or the otherwise identified person suspected of committing the road safety related traffic offence in order to keep him informed of the applicable procedures and the legal consequences under the law of the Member State of the offence. In doing so, Member States should consider sending the information concerning road safety related traffic offences in the language of the registration documents or the language most likely to be understood by the person concerned, to ensure that that person has a clear understanding of the information which is being shared with him. This will allow that person to respond to the information in an appropriate way, in particular by asking for more information, settling the fine or by exercising their rights of defence, in particular in the case of mistaken identity. Further proceedings are covered by applicable legal instruments, including instruments on mutual assistance and on mutual recognition.










(11)


Member States should consider providing equivalent translation with respect to the information letter sent by the Member State of the offence, as provided for in Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (4).










(12)


Closer cooperation between law enforcement authorities should go hand in hand with respect for fundamental rights, in particular the right to respect for privacy and to protection of personal data, to be guaranteed by special data protection arrangements which should take particular account of the specific nature of cross-border online access to databases. Such requirements are satisfied by the Prüm Decisions.










(13)


It should be possible for third countries to participate in the exchange of VRD provided that they have concluded an agreement with the Union to this effect. Such an agreement would have to include necessary provisions on data protection.










(14)


This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, as referred to in Article 6 of the Treaty on European Union.










(15)


In accordance with Articles 1 and 2 of the Protocol (No 21) on the Position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Directive and are not bound by it or subject to its application.










(16)


In accordance with Articles 1 and 2 of the Protocol (No 22) on the position of Denmark, annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application.










(17)


In accordance with point 34 of the Interinstitutional Agreement on better law-making (5), Member States are encouraged to draw up, for themselves and in the interest of the Union, their own tables, which will, as far as possible, illustrate the correlation between this Directive and the transposition measures, and to make them public.










(18)


Since the objective of this Directive, namely to ensure a high level of protection for all road users in the Union by facilitating the cross-border exchange of information on road safety related traffic offences, where they are committed with a vehicle registered in a Member State other than the Member State where the offence took place, cannot be sufficiently achieved by the Member States and can therefore by reason of the scale and effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.










(19)


The European Data Protection Supervisor was consulted and adopted an opinion (6),




HAVE ADOPTED THIS DIRECTIVE:
Article 1
Objective
This Directive aims to ensure a high level of protection for all road users in the Union by facilitating the cross-border exchange of information on road safety related traffic offences and thereby the enforcement of sanctions, where those offences are committed with a vehicle registered in a Member State other than the Member State where the offence took place.
Article 2
Scope
This Directive shall apply to the following road safety related traffic offences:






(a)


speeding;










(b)


non-use of a seat-belt;










(c)


failing to stop at a red traffic light;










(d)


drink-driving;










(e)


driving under the influence of drugs;










(f)


failing to wear a safety helmet;










(g)


use of a forbidden lane;










(h)


illegally using a mobile telephone or any other communication devices while driving.




Article 3
Definitions
For the purposes of this Directive, the following definitions shall apply:






(a)


‘vehicle’ means any power-driven vehicle including motorcycles, which is normally used for carrying persons or goods by road;










(b)


‘Member State of the offence’ means the Member State where the offence has been committed;










(c)


‘Member State of registration’ means the Member State where the vehicle with which the offence has been committed is registered;










(d)


‘speeding’ means exceeding the speed limits in force in the Member State of the offence for the road and the type of vehicle concerned;










(e)


‘non-use of a seat-belt’ means failing to comply with the requirement to wear a seat-belt or use a child restraint in accordance with Council Directive 91/671/EEC of 16 December 1991 relating to the compulsory use of safety belts and child-restraint systems in vehicles (7) and the law in the Member State of the offence;










(f)


‘failing to stop at a red traffic light’ means driving through a red traffic light or any other relevant stop signal, as defined in the law of the Member State of the offence;










(g)


‘drink-driving’ means driving while impaired by alcohol, as defined in the law of the Member State of the offence;










(h)


‘driving under the influence of drugs’ means driving while impaired by drugs or other substances having a similar effect, as defined in the law of the Member State of the offence;










(i)


‘failing to wear a safety helmet’ means not wearing a safety helmet, as defined in the law of the Member State of the offence;










(j)


‘use of a forbidden lane’ means illegally using part of a road section, such as an emergency lane, public transport lane or temporary closed lane for reasons of congestion or road works, as defined in the law of the Member State of the offence;










(k)


‘illegally using a mobile telephone or any other communication devices while driving’ means illegally using a mobile telephone or any other communication devices while driving, as defined in the law of the Member State of the offence;










(l)


‘national contact point’ means a designated competent authority for the exchange of VRD;










(m)


‘automated search’ means an online access procedure for consulting the databases of one, several, or all of the Member States or of the participating countries;










(n)


‘holder of the vehicle’ means the person in whose name the vehicle is registered, as defined in the law of the Member State of registration.




Article 4
Procedure for the exchange of information between Member States
1.   For the investigation of the road safety related traffic offences referred to in Article 2, the Member States shall allow other Member States’ national contact points, as referred to in paragraph 3 of this Article, access to the following national VRD, with the power to conduct automated searches on:






(a)


data relating to vehicles; and










(b)


data relating to owners or holders of the vehicle.




The data elements referred to in points (a) and (b) which are necessary to conduct the search shall be in compliance with the requirements set out in Point 1.2.2 of Chapter 3 of the Annex to Decision 2008/616/JHA.
2.   Any searches in the form of outgoing requests shall be conducted by the national contact point of the Member State of the offence using a full registration number.
Searches shall be conducted in compliance with the procedures as described in Chapter 3 of the Annex to Decision 2008/616/JHA.
The Member State of the offence shall, under this Directive, use the data obtained in order to establish who is personally liable for road safety related traffic offences referred to in Articles 2 and 3.
3.   For the purposes of the supply of data as referred to in paragraph 1, each Member State shall designate a national contact point for incoming requests. The powers of the national contact points shall be governed by the applicable law of the Member State concerned.
4.   Member States shall take all necessary measures to ensure that the exchange of information is carried out by interoperable electronic means and to ensure that this exchange of information is conducted in a cost efficient and secure manner, as far as possible using existing software applications such as the one especially designed for the purposes of Article 12 of Decision 2008/615/JHA, and amended versions of that software.
5.   Each Member State shall bear its costs arising from the administration, use and maintenance of the software applications referred to in paragraph 4.
Article 5
Information letter on the road safety related traffic offence
1.   Where the Member State of the offence decides to initiate follow-up proceedings in relation to the road safety related traffic offences referred to in Article 2, it informs, in accordance with its law, the owner, the holder of the vehicle or the otherwise identified person suspected of committing the road safety related traffic offence of the legal consequences thereof within the territory of the Member State of the offence under the law of that Member State.
2.   When sending the information letter to the owner, the holder of the vehicle or the otherwise identified person suspected of committing the road safety related traffic offence, the Member State of the offence shall, in accordance with its law, include any relevant information such as the nature of the road safety related offence referred to in Article 2, the place, date and time of the offence and, where appropriate, data concerning the device used for detecting the offence.
For that purpose, the Member State of the offence may use the template as set out in the Annex.
3.   Where the Member State of the offence decides to initiate follow-up proceedings in relation to the road safety related traffic offences referred to in Article 2, the Member State of the offence, for the purpose of ensuring the respect of fundamental rights, sends the information letter in the language of the registration document, if available, or in one of the official languages of the Member State of registration.
Article 6
Reporting by Member States to the Commission
Member States shall send a report to the Commission by … (8) and every two years thereafter. The report shall indicate the number of automated searches conducted by the Member State of the offence addressed to the national contact point of the Member State of registration following offences committed on its territory, together with the number of failed requests and the nature of such requests.
Article 7
Data protection
The provisions on data protection set out in the Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters (9) shall apply to personal data processed under this Directive.
All relevant provisions on data protection set out in the Prüm Decisions shall also apply to personal data processed under this Directive.
Article 8
Information for drivers in the Union
The Commission shall make available on its website a summary in all official languages of the institutions of the Union of the rules in force in Member States in the field covered by this Directive. Member States shall provide information on these rules to the Commission.
Article 9
Revision of the Directive
By … (10) the Commission shall submit a report to the European Parliament and the Council on the application of this Directive by the Member States, assess whether other road safety related traffic offences should be added to Article 2 and, if appropriate, make a proposal.
Article 10
Transposition
1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by … (11). They shall forthwith communicate to the Commission the text of those provisions.
When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
Article 11
Entry into force
This Directive shall enter into force on the day following that of its publication in the Official Journal of the European Union.
Article 12
Addressees
This Directive is addressed to the Member States in accordance with the Treaties.

Done at,


For the European Parliament


The President

…



For the Council


The President

…




(1)  Position of the European Parliament of 17 December 2008 (OJ C 45E, 23.2.2010, p. 149) and position of the Council of … (not yet published in the Official Journal). Position of the European Parliament of … (not yet published in the Official Journal) and decision of the Council of … .

(2)  OJ L 210, 6.8.2008, p. 1.

(3)  OJ L 210, 6.8.2008, p. 12.

(4)  OJ L 280, 26.10.2010, p. 1.

(5)  OJ C 321, 31.12.2003, p. 1.

(6)  OJ C 310, 5.12.2008, p. 9.

(7)  OJ L 373, 31.12.1991, p. 26.

(8)  Fifty four months after the entry into force of this Directive.

(9)  OJ L 350, 30.12.2008, p. 60.

(10)  Sixty months after the entry into force of this Directive.

(11)  Twenty-four months after the entry into force of this Directive.


ANNEX

TEMPLATE FOR THE INFORMATION LETTER

referred to in Article 5


















STATEMENT OF THE COUNCIL’S REASONS
I.   INTRODUCTION

On 19 March 2008, the Commission presented its proposal for a Directive of the European Parliament and of the Council facilitating cross-border enforcement in the field of road safety.
Intensive discussions took place under French Presidency during the second semester of 2008. The majority of delegations welcomed the proposal although expressing concerns about the legal basis for the Directive. At the TTE Council of October 2008, 15 Ministers privileged a ‘third pillar solution’. At its meeting of 9 December 2008, the TTE Council was therefore not able to reach an agreement and it was agreed that Council preparatory bodies should continue working to find a solution.
On 17 December 2008, the European Parliament voted its opinion at first reading.
The Council resumed the examination of the proposal, from July 2010, based on new Belgian Presidency proposals, in particular on the legal basis (Article 87(2) TFEU, police cooperation). On 2 December 2010, the Council adopted unanimously a conclusion on the political agreement with respect to the proposed Directive. On that occasion, the Commission issued a statement noting that there was unanimity within the Council on the draft Presidency compromise, including on the replacement of the legal basis proposed by the Commission, namely Article 91(1)(c) TFEU by Article 87(2) TFEU. While the Commission shared the view of the Council about the importance of pursuing the aims of the proposed Directive to improve road safety, it considered however from a legal and institutional perspective that Article 87(2) TFEU did not constitute the appropriate legal basis.
On 17 March 2011, the Council adopted its position at first reading in accordance with the ordinary legislative procedure laid down in Article 294 of the Treaty on the Functioning of the European Union.
II.   ANALYSIS OF THE COUNCIL POSITION AT FIRST READING

1.   
General


On 19 March 2008, the Commission presented a proposal aiming at facilitating the sanctioning of certain traffic offences committed in a Member State with a vehicle registered in another one by setting up a system for the exchange of relevant data between Member States. Four road safety offences were covered in the Commission proposal: speeding, driving under the influence of alcohol, failure to wear a seat belt and failure to observe red traffic lights. Given that these are the offences which cause the greatest number of accidents and deaths on the European roads. The proposal would introduce a network for the exchange of electronic data throughout the EU to enable the owner of a vehicle to be identified so that the authorities of a Member State in which an offence has been committed can serve notice on the owner of the vehicle with which the offence was committed.
The Council position at first reading shares the same objectives and underlying principles as the Commission proposal. It also intends to improve road safety and to ensure equal treatment of drivers irrespective of their state of residence. However, it uses a different legal basis and provides for a simpler implementation system than what is foreseen in the Commission proposal. The Council approach furthermore provides for a better protection of personal data which are exchanged under the Directive, and its scope includes four additional offences which were not foreseen in the Commission proposal.
2.   
Main issues


i)   Legal basis

The legal basis of the Commission proposal is Article 71(1) (c) of the Treaty establishing the European Community (transport) (1).
Considering the legal options provided by the TFEU, the Council chose another legal basis (Article 87(2) TFEU, police cooperation).
The European Parliament, which voted its opinion before the entry into force of the Lisbon Treaty, followed the Commission proposal on this issue.
As indicated above, the Commission has not been able to endorse the change of legal basis and, therefore, unanimity is required to reach an agreement amongst the Member States.
ii)   Scope

The Commission proposed that the scope of the Directive would include four offences (speeding, drink-driving, non-use of a seat-belt and failing to stop at a red traffic light).
The Council in its position at first reading added four new offences: driving under the influence of drugs, failing to wear a safety helmet, use of a forbidden lane, and illegally using a cell phone or any other communication devices while driving. The Council specified that this list may be extended in the future through a revision of the Directive, following a Commission report to the European Parliament and the Council at the latest five years after the entry into force of the Directive.
The European Parliament followed the Commission proposal with respect to the scope of the Directive. It suggested that the Commission should submit a report on its implementation and effectiveness to the European Parliament and the Council, which could be followed by the extension of the scope of the Directive, in essence similarly to what is provided for in the Council position at first reading (except that the EP suggested a deadline of two years). However, the EP amendment also indicates that such report could include Commission proposals to harmonize checking equipment, as well as an assessment of the implementation of road safety guidelines.
iii)   Definitions

The Commission proposed a list of definitions reflecting the wording used in the text of its proposal.
The Council modified the Commission proposal in this respect to adapt the list of definitions to the new wording of its position at first reading.
The European Parliament followed largely the Commission proposal, but introduced four additional definitions:






—


it extended the definition of ‘holder’ so that motorcycles are also covered by the Directive. The spirit of that amendment has been included in the Council position at first reading since one of the offences covered by the Directive is ‘failing to wear a safety helmet’;










—


it specified that a ‘competent authority’ is a single contact point. That amendment has not been included in the Council position at first reading as some Member States have more than one registration authority;










—


two other definitions (‘central authority’, ‘Final Administrative Decision’) could not be accepted as the Council position at first reading does not use such wording.




iv)   Information letter

The Commission proposal included a form for the offence notification which had to be sent to the holder of the vehicle registration certificate. It requested this holder to give details concerning the driver of the vehicle when the offence was detected if the holder did not accept to pay the penalty. It was then left to the Member State of offence to decide whether or not to pursue the driver.
The offence notification contained the necessary information for payment of the amount due and information on the possibilities of contestation and appeal. As a last resort, in the case of non-payment by the offender, Council Framework Decision 2005/214/JHA would apply.
The Council position at first reading provides for a template for the information letter whose content is very similar to the offence notification included in the Commission proposal. However, considering that the information letter is non compulsory (while the offence notification is), the information letter only advises the offender to fill in the reply form attached to it.
The European Parliament followed the Commission proposal with some modifications aiming at adding more information to the offence notification. In the event where the holder of the vehicle registration certificate was not the driver of the vehicle at the time of the offence, the holder of the vehicle registration certificate might reveal the identity of the driver, but did not have to do so.
v)   Data protection

The Commission proposed to use Directive 95/46/EC to ensure data protection under the Directive, and it provided for a right of access, correction and deletion with respect to the data of the persons concerned.
The Council considered that in the specific context of the Directive, in view of the new legal basis, it would be more appropriate to refer to the data protection provisions set out in Council Framework Decision 2008/977/JHA, as well as in Council Decisions 2008/615/JHA and 2008/616/JHA.
The European Parliament followed largely the Commission proposal but insisted on a strong system of data protection to be put into place:






—


ensuring the confidentiality of the data transmitted;










—


ensuring that the data subject is aware of his/her rights of access, rectification and deletion of his/her personal data;










—


preventing any personal data gathered under the Directive from being used for purposes other than those specifically related to road safety.




Those safeguards requested by the European Parliament are broadly included in the legislative acts (Council Framework Decision 2008/977/JHA, Council Decisions 2008/615/JHA and 2008/616/JHA) referred to in the Council position at first reading.
vi)   Information of EU citizens

The Commission did not provide for the information of European drivers with respect to traffic rules in its proposal.
The Council included in its position at first reading the obligation for the Commission to make available on its website a summary in all EU official languages of the rules in force in the Member States concerning road safety.
The European Parliament insisted on the importance of drivers information for road safety policy, the necessary information being communicated to EU citizens through Member States and the Commission. One of the means proposed by the European Parliament is the Commission website, which is also mentioned in the Council position at first reading.
3.   
Other amendments adopted by the European Parliament


Further amendments not included in the Council position at first reading concern in particular the:






—


introduction of harmonised fixed penalties for road traffic offences;










—


harmonisation of road safety control practices and of the technical equipment used for that purpose (through the adoption of EU-wide road safety guidelines);










—


the introduction of a system of follow-up of road traffic offences, recognition and enforcement of sanctions, and transmission of information concerning decisions on such offences when financial penalties remain unpaid;










—


committee procedure;










—


general principles of law (non discriminatory financial penalties imposed by the law of the State of Offence; non-retroactivity).




III.   CONCLUSION

In establishing its position at first reading, the Council has taken full account of the proposal of the Commission and of the European Parliament’s opinion at first reading.
However, considering that the text agreed upon by the Council in December 2010 differs significantly from the 2008 Commission proposal whereon the EP amendments are based, the Council did not consider relevant to examine each single amendment individually. Indeed, the entry into force of the Lisbon Treaty and the change of legal basis have constrained the Council to redraft most provisions of the Commission proposal.
With respect to the amendments proposed by the European Parliament, the Council observes that a number of amendments have - in spirit, partially or fully - already been included in its position at first reading.
Negotiations with the European Parliament should therefore start as such at second reading, on the basis of the text agreed by the Council in December 2010, rather than on the basis of the Commission proposal.


(1)  Now Article 91(1) (c) TFEU.