COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT  pursuant to Article 294 (6) of the Treaty on the Functioning of the European Union  concerning the Council's position at first reading on a proposal for a Directive of the European Parliament and of the Council facilitating cross-border enforcement in the field of road safety
Date: 2011-03-21
Institutions: European Commission
Subjects: EU Member State, accident prevention, action programme, approximation of laws, cooperation policy, cross-border cooperation, road safety

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EUROPEAN COMMISSION  

Brussels, 21.3.2011 
COM(2011) 148 final 

2008/0062 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294 (6) of the Treaty on the Functioning of the European Union 

concerning the 

Council's position at first reading on a proposal for a Directive of the European 
Parliament and of the Council facilitating cross-border enforcement in the field of road 
safety 

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2008/0062 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294 (6) of the Treaty on the Functioning of the European Union 

concerning the 

Council's position at first reading on a proposal for a Directive of the European 
Parliament and of the Council facilitating cross-border enforcement in the field of road 
safety 

1. 

BACKGROUND 

Date of transmission of the proposal to the EP and the Council 
COM(2008) 151 final – 2008/0062(COD) 

Date of the opinion of the European Economic and Social 
Committee: 

19/03/2008 

17/09/2008 

Date of the opinion of the European Parliament, first reading: 

17/12/2008 

Date of adoption of the position of the Council: 

17/03/2011 

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

The objective of the Commission's proposal is to improve road safety by establishing a system 
of information exchange between the State of offence and the State of registration on the most 
serious road safety infringements. It serves to identify the vehicle owner who has committed 
an offence in a Member State other than the one where his vehicle is registered; the Member 
State of offence would then be in a position to prosecute and sanction him. 

The offences covered by the proposal are speeding, non-use of a seatbelt, failing to stop at a 
red  traffic  light  and  drink-driving.  These  traffic  offences  are  responsible  for  the  greatest 
number of road accidents and fatalities.  

The text also defines the exchange procedures (data, responsible authorities and network) and 
provides  for  a  model  notification  letter  that  will  be  sent  to  the  holder  of  the  registration 
certificate.  The  Commission  proposal  covers  the  establishment  of  an  EU  network  for  this 
exchange  of  information,  which  would  include  the  relevant  interfaces  with  existing 
systems/networks. 

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3. 

COMMENTS ON THE COUNCIL'S POSITION  

3.1 General comments on the Council's position 

Regarding the substance of the Council's position, in general the text will facilitate the cross-
border  exchange  of  information  on  road  safety  traffic  offences  and  can  meet  the 
Commission’s  main  objectives  in  terms  of  ensuring  a  high  level  of  protection  for  all  road 
users in the EU. The adopted text contributes to the fulfilment of the new policy orientations 
on  road  safety  adopted  by  the  Commission  for  the  period  2011-2020,  more  particularly  as 
regards  the  strategic  objective  concerning  the  increased  enforcement  of  traffic  rules.  It  is 
expected to have a strong deterrent effect, by encouraging all drivers to respect traffic law.  

The  primary  objective  of  the  Commission’s  proposal  was  to  establish  an  information 
exchange enabling the identification of the vehicle owner who has committed an offence in a 
Member  State  other  than  the  one  where  his  vehicle  is  registered.  This  objective  has  largely 
been  achieved  in  the  Council’s  position  at  first  reading,  although  the  architecture  of  the 
information exchange initially proposed by the Commission provided for the establishment of 
an  EU  network  for  the  purpose  of  the  Directive,  which  is  not  the  case  in  the  Council's 
position. 

The  second  main  objective  followed  by  the  Commission  in  its  proposal  is  related  to  the 
follow-up given to the identification of the offender, once the information is available. This 
objective  appears  only  partly  met  in  the  Council’s  position  at  first  reading  and  the 
Commission  believes  that  there  is  room  for  strengthening  the  text  on  this  aspect,  building 
upon the relevant EP amendments made in first reading. 

With regard to the choice of the legal basis, the Commission considered that from a legal and 
institutional perspective the “police cooperation” legal basis (Article 87 paragraph 2) does not 
constitute  the  appropriate  legal  basis  for  this  Directive.  Against  this  background,  the 
Commission  entered  a  statement  to  the  Council  minutes  reserving  its  right  to  use  all  legal 
means at its disposal (see point 4). The Commission also noted that there was unanimity in the 
Council on the "police cooperation" legal basis. 

3.2 Detailed Commission comments  

3.2.1 Substance of the Council's position 

The Council decided to extend the list of offences covered by the Directive. In addition to the 
so-called “four killers” (speeding, non-use of a seatbelt, failing to stop at a red traffic light and 
drink-driving), the list now also includes other offences, such as driving under the influence 
of drugs. The Commission welcomes this expansion of the scope of the instrument.  

As  regards  the  mechanism  for  the  exchange  of  information  and  the  network  to  be  used,  the 
approach  retained  by  the  Council  position  derives  from  existing  “police  cooperation” 
instruments. More particularly, it builds upon the existing information exchange established in 
the  context  of  the  Prüm  Decisions  on  cross-border  cooperation  in  combating  terrorism  and 

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cross-border crime on vehicle registration data.1 The Council proposed that the Member State 
of registration allows the Member State of offence access to the national vehicle registration 
database for the data relating to vehicles and to their holders. For this information exchange, 
the Council opted in its position for the replacement of the EU electronic network as initially 
proposed by the Commission by the direct use of already existing systems established under 
the Prüm Decisions. 

While  expressing  a  preference  for  the  establishment  of  an  EU  electronic  network  along  the 
lines  of  its  proposal,  the  Commission  showed  however  some  flexibility  on  this  issue  and 
accepted  that  the  exchange  of  information  is  carried  out  as  far  as  possible  using  existing 
systems such as EUCARIS. The Commission considers indeed that the Council’s approach on 
the  information  exchange  mainly  affects  the  technical  modalities  for  the  exchange  of 
information and that it does not fundamentally reduce the main objective of the Directive.  

Finally, the notification letter initially proposed by the Commission has been replaced in the 
Council  position  by  an  information  letter  (Article  4a),  to  be  sent  to  the  offender  when  the 
Member State of offence decides to proceed with the enforcement of the offence. The use of 
the template in annex to the Directive is left optional to Member States. The Commission can 
accept  the  Council’s  approach,  provided  that  Member  States  inform  the  offender  when  it 
decides to proceed with the enforcement of the road safety offence. 

Regarding  data  protection  aspects,  the  Commission  can  accept  that  Decision  2008/977/JHA 
applies to the exchange of data related to criminal offences but insists on adding a reference to 
Directive 95/46/EC concerning the exchange of data related to administrative offences. 

Finally,  it  has  to  be  underlined  that,  while  the  Commission  accepted  most  of  the  EP 
amendments in first reading since they were strengthening its initial proposal, the Council did 
not include any of them in its position. 

3.2.2 Legal basis 

The Commission would like to draw the attention of the European Parliament on the change 
of  legal  basis,  which  has  been  decided  in  the  Council  and  on  which  the  Commission  has 
issued  a  statement  (see  declaration  of  the  Commission  under  point  4),  since  this  change 
represents a difficult precedent. 

First of all, the proposed Directive has a clear road safety objective and falls therefore within 
the scope of Article 91 TFEU. In addition, the proposed Directive does not have any impact 
on the national classification of the relevant offences. 

Besides,  under  Article  87  (2),  three  Member  States  enjoy  a  derogative  regime  on  police 
cooperation ("opt-in" for UK and IE and "opt-out" for DK according respectively to Protocols 
21 and 22 TFEU), which implies that potentially, three Member States would not be covered 
by the proposed Directive. 

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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 and of the Council Decision 2008/616/JHA 
of 23 June 2008 on the implementation of Decision 2008/615/JHA 

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In  addition,  the  Commission  believes  that  Article  87  (2)  can  cover  only  criminal  traffic 
offences.  

4. 

CONCLUSIONS/GENERAL OBSERVATIONS 

While  the  Commission  considers  that  several  aspects  of  the  Council’s  position  do  meet  the 
main  objectives  of  its  initial  proposal  as  explained  above  (see  in  particular  part  3.2.1),  the 
change of the legal basis has led the Commission to make the following statement:  

"The  Commission  notes  that  there  is  unanimity  within  the  Council  on  the  draft  Presidency 
compromise,  including  on  the  replacement  of  the  legal  basis  proposed  by  the  Commission, 
namely  Article  91,  paragraph  1c,  TFEU  by  Article  87,  paragraph  2,  TFEU.  While  the 
Commission shares the view of the Council about the importance of pursuing the aims of the 
proposed  Directive  to  improve  road  safety  ,  it  considers  however  from  a  legal  and 
institutional  perspective  that  Article  87,  paragraph  2,  TFEU  does  not  constitute  the 
appropriate legal basis and therefore reserves its right to use all legal means at its disposal. "  

For the second reading, possible compromises should be explored in order to find appropriate 
solutions allowing to cover both administrative and criminal offences.  

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