CELEX: 51995FC0050
Language: en
Date: 2008-07-29
Title: Proposal for a Directive …/…/EC of the European Parliament and of the Council of […] on uniform procedures for checks on the transport of dangerous goods by road (Codified version)

EN

|[pic]                     |COMMISSION OF THE EUROPEAN COMMUNITIES                                                                           |

                                        Brussels,
                                        COM(2007)

                                                                  Proposal for a

                                          DIRECTIVE …/…/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

                                                                      of […]

                                   on uniform procedures for checks on the transport of dangerous goods by road

                                                                (Codified version)

                                                              EXPLANATORY MEMORANDUM

1.    In the context of a people’s Europe, the Commission attaches great importance to simplifying and clarifying Community law so as to make  it
       clearer and more accessible to the ordinary citizen, thus giving him new opportunities and the chance to make use of the  specific  rights
       it gives him.

       This aim cannot be achieved so long as numerous provisions that have  been  amended  several  times,  often  quite  substantially,  remain
       scattered, so that they must be sought partly in the original instrument and partly in later amending ones.  Considerable  research  work,
       comparing many different instruments, is thus needed to identify the current rules.

       For this reason a codification of rules that have frequently been amended  is  also  essential  if  Community  law  is  to  be  clear  and
       transparent.

2.    On 1 April 1987 the Commission therefore decided[1] to instruct its staff that all legislative acts should be codified after no  more  than
       ten amendments, stressing that this is a minimum requirement and that departments should endeavour to codify at even shorter intervals the
       texts for which they are responsible, to ensure that the Community rules are clear and readily understandable.

3.    The Conclusions of the Presidency of the Edinburgh  European  Council  (December 1992)  confirmed  this[2],  stressing  the  importance  of
       codification as it offers certainty as to the law applicable to a given matter at a given time.

       Codification must be undertaken in full compliance with the normal Community legislative procedure.

       Given that no changes of substance may be made to the instruments affected by codification, the European Parliament, the Council  and  the
       Commission have agreed, by an interinstitutional agreement dated 20 December 1994, that an accelerated procedure may be used for the fast-
       track adoption of codification instruments.

4.    The purpose of this proposal is to undertake a codification of Council Directive 95/50/EC of 6  October  1995  on  uniform  procedures  for
       checks on the transport of dangerous goods by road[3]. The new Directive will supersede the  various  acts  incorporated  in  it[4];  this
       proposal fully preserves the content of the acts being codified and hence does no more than bring them  together  with  only  such  formal
       amendments as are required by the codification exercise itself.

5.    The codification proposal was drawn up on the basis of a preliminary consolidation, in all official languages, of  Directive  95/50/EC  and
       the instruments amending it, carried out by the Office for Official Publications  of  the  European  Communities,  by  means  of  a  data-
       processing system. Where the Articles have been given new numbers, the correlation between the old and the new numbers is shown in a table
       contained in Annex V to the codified Directive.

                                                                  Proposal for a

                                            ê 95/50/EC

                                          DIRECTIVE …/…/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

                                                                      of […]

                                   on uniform procedures for checks on the transport of dangerous goods by road

                                                            (Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 71 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee[5],

Having regard to the Opinion of the Committee of the Regions[6],

Acting in accordance with the procedure laid down in Article 251 of the Treaty[7],

Whereas:

                                            ê .

   1) Council Directive 95/50/EC of 6 October 1995 on uniform procedures for checks on the transport of  dangerous  goods  by  road[8]  has  been
      substantially amended several times[9]. In the interests of clarity and rationality the said Directive should be codified.

                                            ê 95/50/EC

   2) 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[10]  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[11].

   3) The Council has adopted Directive 94/55/EC of 21 November 1994 on the approximation of the laws of the Member States  with  regard  to  the
      transport of dangerous goods by road[12]. 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.

   4) 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.

                                            ê 95/50/EC recital 5 (adapted)

   5) Ö Since the objectives of the improvement of the level of safety of the transport of dangerous goods cannot be sufficiently achieved by the
      Member States and can therefore, by reason of the scale of the effects of such an action, be better achieved at Õ  Community  Ö level,  the
      Community may adopt measures, in accordance with Õ the principle of subsidiarity, Ö as set out in Article 5 of the Treaty Õ.

                                            ê 95/50/EC

   6) Checks should be carried out using a list of common items applicable to such transport throughout the Community.

                                            ê 95/50/EC recital 7 (adapted)

   7) It is necessary to Ö maintain Õ 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.

                                            ê 95/50/EC

   8) 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.

   9) 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.

  10) 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 they should inform the requesting Member  State  of  any
      follow-up measures taken.

  11) The application of this Directive should be monitored on the basis of a report to be submitted by the Commission.

                                            ê .

  12) The measures necessary for the implementation of this Directive should be adopted in accordance with Council  Decision  1999/468/EC  of  28
      June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission[13].

  13) This Directive should be without prejudice to the obligations of the Member States relating  to  the  time-limits  for  transposition  into
      national law of the Directives set out in Annex IV, Part B,

                                            ê 95/50/EC

HAVE 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 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:

(a)   ‘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;

(b)   ‘dangerous goods’ shall mean dangerous goods as defined in the third indent of Article 2 of Directive 94/55/EC;

(c)   ‘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 94/55/EC, without prejudice to the arrangements laid  down
       by the laws of the Member States concerning liability in respect of such operations;

(d)   ‘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;

(e)   ‘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 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.

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 the 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.

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.

2. 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 twelve 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:

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

(b)   number of checks carried out;

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

(d)   number and types of infringements recorded;

(e)   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 .

                                            ê 2001/26/EC Art. 1 pt. 1 (adapted)

                                                                    Article 10

The amendments necessary to adapt the Annexes to scientific and technical progress in the fields covered by  this  Directive,  in  particular  to
take account of amendments to Directive 94/55/EC, shall be adopted in accordance with the procedure Ö referred to Õ in Article 11(2).

                                                                    Article 11

1. The Commission shall be assisted by the committee on the transport of dangerous goods set up by Article 9 of Directive  94/55/EC,  hereinafter
referred to as the Committee.

2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC[14] shall  apply,  having  regard  to  the  provisions  of
Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.

3. The Committee shall adopt its rules of procedure.

                                            ê 95/50/EC Art. 10 (adapted)

                                                                    Article 12

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.

                                            ê .

                                                                    Article 13

Directive 95/50/EC, as amended by the Directives listed in Annex IV, Part A, is repealed, without prejudice to  the  obligations  of  the  Member
States relating to the time-limits for transposition into national law of the Directives set out in Annex IV, Part B.

References to the repealed Directive shall be construed as references to this Directive and shall be read  in  accordance  with  the  correlation
table in Annex V.

                                            ê 95/50/EC Art. 11 (adapted)

                                                                    Article 14

This Directive shall enter into force on the Ö twentieth Õ day Ö following that Õ of its publication in the  Official  Journal  of  the  European
Union .

                                            ê 95/50/EC Art. 12

                                                                    Article 15

This Directive is addressed to the Member States.

Done at Brussels, […]

For the European Parliament  For the Council
The President    The President
[…]   […]

                                            ê 2004/112/EC Art. 1 and Annex I (adapted)

                                                                     ANNEX I

                                                          Ö (referred to in Article 4) Õ

                                                                      [pic]

                                                                      [pic]

                                            ê 2004/112/EC Art. 1 and Annex II (adapted)

                                                                     ANNEX II

                                                                  INFRINGEMENTS

For the purposes of this Directive, the following non-exhaustive list,  classified  into  three  risk  categories  (Category  I  being  the  most
serious), gives a guideline on what is to be regarded as infringement.

The determination of the appropriate risk category must take account of the particular circumstances  and  be  left  to  the  discretion  of  the
enforcing body/officer at the roadside.

Failures that are not listed under the risk categories shall be classified according to the descriptions of the categories.

In the event there are several infringements per transport unit, only the most serious risk category (as indicated under item 32 in  Annex  I  to
this Directive) shall be applied for reporting purposes (Ö in compliance with the model set out in Õ Annex III to this Directive).

1.    Risk Category I

Where failure to comply with relevant ADR provisions creates a high-level risk of death, serious personal injury or  significant  damage  to  the
environment such failures would normally lead to taking immediate and appropriate corrective measures such as immobilisation of the vehicle.

Failures are:

1.    The dangerous goods being carried are prohibited for transport

2.    Leakage of dangerous substances

3.    Carriage by a prohibited mode or an inappropriate means of transport

4.    Carriage in bulk in a container which is not structurally serviceable

5.    Carriage in a vehicle without an appropriate certificate of approval

6.    Vehicle no longer complies with the approval standards and presents an immediate danger (otherwise it goes in risk category II)

7.    Non-approved packaging is used

8.    Packaging does not conform to the applicable packing instruction

9.    The special provisions for mixed packing have not been complied with

10.   The rules governing the securing and stowage of the load have not been complied with

11.   The rules governing mixed loading of packages have not been complied with

12.   The permissible degrees of filling of tanks or packages have not been complied with

13.   The provisions limiting the quantities carried in one transport unit have not been complied with

14.   Carriage of dangerous goods without any indication of their presence (e.g. documents, marking and labelling  on  the  packages,  placarding
       and marking on the vehicle)

15.   Carriage without any placarding and marking on the vehicle

16.   Information relevant to the substance being carried enabling determination of a risk category I offence is missing (e.g. UN number,  proper
       shipping name, packing group)

17.   Driver does not hold a valid vocational training certificate

18.   Fire or an unprotected light is being used

19.   The ban on smoking is not being observed.

2.    Risk Category II

Where failure to comply with relevant ADR provisions creates a risk of personal injury or damage to the environment such failures would  normally
lead to taking appropriate corrective measures such as requiring rectification at the site of control if possible and  appropriate,  but  at  the
completion of the current transport movement at the latest.

Failures are:

1.    The transport unit comprises more than one trailer/semi-trailer

2.    Vehicle no longer complies with the approval standards but does not present an immediate danger

3.    The vehicle is not carrying operational fire extinguishers as required; a fire extinguisher can still be deemed  operational  if  only  the
       prescribed seal and/or the expiry date are missing; however,  this  does  not  apply  if  the  fire  extinguisher  is  visibly  no  longer
       operational, e.g. pressure gauge at 0

4.    The vehicle does not carry the equipment required in the ADR or in the instructions in writing

5.    Test and inspection dates and use periods of packaging, IBCs or large packaging have not been complied with

6.    Packages with damaged packaging, IBCs or large packaging or damaged uncleaned empty packaging are being carried

7.    Carriage of packaged goods in a container which is not structurally serviceable

8.    Tanks/tank containers (including ones that are empty and uncleaned) have not been closed properly

9.    Carriage of a combination packaging with an outer packaging which is not closed properly

10.   Incorrect labelling, marking or placarding

11.   There are no instructions in writing conforming to the ADR, or the instructions in writing are not relevant to the goods carried

12.   The vehicle is not properly supervised or parked.

3.    Risk Category III

Where failure to comply with relevant provisions result in a low level of risk of  personal  injury  or  damage  to  the  environment  and  where
appropriate corrective measures do not need to be taken at the roadside but can be addressed at a later date at the undertaking.

Failures are:

1.    The size of placards or labels or the size of letters, figures or symbols on placards or labels does not comply with the regulations

2.    Information in the transport documentation other than that in risk category I/(16) is not available

3.    The training certificate is not on board the vehicle but there is evidence that the driver holds it.

                                                                  _____________

                                            ê 2004/112/EC Art. 1 and Annex III

                                                                    ANNEX III

                                                                      [pic]

                                                                    _________

                                            é

                                                                     ANNEX IV

                                                                      Part A

                                                Repealed Directive with its successive amendments
                                                           (referred to in Article 13)

|Council Directive 95/50/EC                                                    |(OJ L 249, 17.10.1995, p. 35)                        |
|Directive 2001/26/EC of the European Parliament and of the Council             |(OJ L 168, 23.6.2001, p. 23)                         |
|Commission Directive 2004/112/EC                                               |(OJ L 367, 14.12.2004, p. 23)                        |

                                                                      Part B

                                             List of time-limits for transposition into national law
                                                           (referred to in Article 13)

|Directive                                                            |Time-limit for transposition                                         |
|95/50/EC                                                             |31 December 1996                                                     |
|2001/26/EC                                                           |23 December 2001                                                     |
|2004/112/EC                                                          |14 December 2005                                                     |

                                                                  _____________

                                                                     ANNEX V

                                                                Correlation Table

|Directive 95/50/EC                                                   |This Directive                                                       |
|Article 1                                                            |Article 1                                                            |
|Article 2 first indent                                               |Article 2(a)                                                         |
|Article 2 second indent                                              |Article 2(b)                                                         |
|Article 2 third indent                                               |Article 2(c)                                                         |
|Article 2 fourth indent                                              |Article 2(d)                                                         |
|Article 2 fifth indent                                               |Article 2(e)                                                         |
|Article 3(1)                                                         |Article 3 first paragraph                                            |
|Article 3(2)                                                         |Article 3 second paragraph                                           |
|Articles 4 and 5                                                     |Articles 4 and 5                                                     |
|Article 6(1)                                                         |Article 6(1) first subparagraph                                      |
|Article 6(2) first subparagraph                                      |Article 6(1) second subparagraph                                     |
|Article 6(2) second subparagraph                                     |Article 6(2)                                                         |
|Articles 7 and 8                                                     |Articles 7 and 8                                                     |
|Article 9(1) first indent                                            |Article 9(1)(a)                                                      |
|Article 9(1) second indent                                           |Article 9(1)(b)                                                      |
|Article 9(1) third indent                                            |Article 9(1)(c)                                                      |
|Article 9(1) fourth indent                                           |Article 9(1)(d)                                                      |
|Article 9(1) fifth indent                                            |Article 9(1)(e)                                                      |
|Article 9(2)                                                         |Article 9(2)                                                         |
|Article 9a                                                           |Article 10                                                           |
|Article 9b                                                           |Article 11                                                           |
|Article 10(1)                                                        |-                                                                    |
|Article 10(2)                                                        |Article 12                                                           |
|-                                                                    |Article 13                                                           |
|Article 11                                                           |Article 14                                                           |
|Article 12                                                           |Article 15                                                           |
|Annexes I, II and III                                                |Annexes I, II and III                                                |
|-                                                                    |Annex IV                                                             |
|-                                                                    |Annex V                                                              |

                                                                  _____________

                                                             -----------------------
[1]   COM(87) 868 PV.
[2]   See Annex 3 to Part A of the Conclusions.
[3]   Carried out pursuant to the Communication from the Commission to the European Parliament and the  Council  –  Codification  of  the  Acquis
      communautaire, COM(2001) 645 final.
[4]   See Annex IV, Part A of this proposal.
[5]   OJ C
[6]   OJ C
[7]   OJ C
[8]   OJ L 249, 17.10.1995, p. 35. Directive as last amended by Commission Directive 2004/112/EC (OJ L 367, 14.12.2004, p. 23).
[9]   See Annex IV, Part A.
[10]  OJ L 390, 30.12.1989, p. 18. Regulation as amended by Regulation (EEC) No 3356/91 (OJ L 318, 20.11.1991, p. 1).
[11]  OJ L 395, 31. 12. 1992, p. 6.
[12]  OJ L 319, 12.12.1994, p. 7. Directive as last amended by Commission Directive 2006/89/EC (OJ L 305, 4.11.2006, p. 4).
[13]  OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision 2006/512/EC (OJ L 200, 22.7.2006, p. 11).
[14]  OJ L 184, 17.7.1999, p. 23.