Presentation on theme: "Euro Contrôle Route ADR and ERRU (Electronic Register Road Transport Undertakings) Mr. Gerard Schipper ECR External Representation 7th of July, Brussels."— Presentation transcript:
Euro Contrôle Route ADR and ERRU (Electronic Register Road Transport Undertakings) Mr. Gerard Schipper ECR External Representation 7th of July, Brussels www.euro-controle-route.eu
Euro Contrôle Route Presentation of legal background for ERRU Overview of most serious infringements (Annex IV) Selecting those risk category I infringements*, which can classify as ADR related most serious infringements in Annex IV * in accrodance with Directive 2004/112
Euro Contrôle Route → legal background “road package” adopted by the Commission comprises 3 legal acts: - pursue (admission to) occupation of road transport operator (Reg. 1071/2009/EC) (shall apply from 4 th December 2011) - access to international road haulage market (Reg. 1072/2009/EC) - access to international coach and bus services market (Reg. 1073/2009/EC) -> let’s take a quick look at the recitals of Reg. 1071 related the ERRU and most serious infringements stored within
Euro Contrôle Route (9) A conviction or penalty incurred by a transport manager or a road transport undertaking in one or more Member States for the most serious infringements of Community rules should result in the loss of good repute (12) The national authorities responsible for monitoring undertakings and the validity of their authorisations have a crucial role to play in this respect, and it is appropriate to ensure that they take suitable measures if necessary, in particular in the most serious cases by suspending or withdrawing authorisations or declaring as unsuitable transport managers who are repeatedly negligent or who act in bad faith. This must be preceded by due consideration of the measure with respect to the proportionality principle. An undertaking should, however, be warned in advance and should have a reasonable period of time within which to rectify the situation before incurring such penalties.
Euro Contrôle Route (13) Better organised administrative cooperation between Member States would improve the effectiveness of the monitoring of undertakings operating in several Member States and would reduce administrative costs in the future. Electronic registers of undertakings interconnected throughout the Community, which comply with the Community rules on the protection of personal data, would facilitate such cooperation and reduce the costs involved in checks for both undertakings and administrations. National registers already exist in several Member States. Infrastructure has also been set up with a view to promoting interconnection between Member States. A more systematic use of electronic registers could therefore make a significant contribution to reducing the administrative costs of checks and to improving their effectiveness. (14) Some data contained in national electronic registers concerning infringements and penalties are personal… For the purposes of this Regulation, it would appear to be necessary to retain such data for at least 2 years to ensure that disqualified undertakings do not establish themselves in other Member States.
Euro Contrôle Route (16) It is essential to gradually interconnect national electronic registers so as to enable information to be exchanged rapidly and efficiently between Member States and to guarantee that road transport operators are not tempted to commit, or to take the risk of committing, serious infringements in Member States other than their Member State of establishment. Interconnection of this kind entails the joint definition of the precise format of the data to be exchanged and the technical procedures for the exchange of that data. (24) In particular, the Commission should be empowered to draw up a list of categories, types and degrees of seriousness of infringements leading to the loss of good repute of road transport operators,…, and to draw up a list of infringements which in addition to those set out in Annex IV to this Regulation may lead to the loss of good repute.
Euro Contrôle Route Summary of the recitals: - most serious infringements (Annex IV) should lead to loss of good repute and thus withdrawal of the authorization - competent authorities should monitor undertakings with better organized administrative cooperation, that is by interconnecting mostly already existing electronic registers. This interconnection should occur gradually and at the latest be in place by December 2012 in order to facilitate quick data exchange and thus also preventing any temptation for committing serious infringements as well.
Euro Contrôle Route Article 6 – loss of good repute One of the preconditions of admission to occupation and key element is good repute, which means that no convictions for serious criminal offence or penalty has been imposed for serious infringements in the field of safety in the carriage of dangerous goods by road among others. /Art 6, 1b (vi)/ If however the undertaking has indeed incurred a penalty for one of the most serious infringements of Community rules as set out in Annex IV an administrative procedure should be conducted by the competent authority to decide on by observing the principle of proportionality the loss of good repute.
Euro Contrôle Route Article 16 - Establishment of an ERRU Timeframe: - minimal dataset to be determined by December 2009 (done) - however apart from the most serious infringements in Annex IV the serious ones will have be to be entered from 2015 onwards - technical procedures for consultation (data format), interoperability etc. to be laid down by 2010 December – TUNER project on behalf of EU Commission conducted by a consortium involving ECR - interconnection by 2012 December, but administrative cooperation via contact points from 4 December 2011
Euro Contrôle Route 1. ERRU and good repute Harmonisation and implementation of the good repute requirement
Euro Contrôle Route 3. Requirement of good repute Good repute road transport undertaking and transport manager - National conditions: No compelling grounds for doubting the good repute - Community conditions: No conviction of or penalty for a serious infringement
Euro Contrôle Route 4. Consequences loss of good repute? May result in: - Suspension or withdrawal authorisation undertaking - Declaration of unfitness of the transport manager (TM)
Euro Contrôle Route What is good repute? Community conditions: 7 serious infringements 1.Exceeding permitted driving time; 2.No tachograph or speed limiter, omission driver card data; 3. No roadworthiness; 4. Carriage of dangerous goods; 5. No valid? driving licence or valid? authorisation; 6. Falsified or falsely obtained driving licence; 7. Exceeding maximum weight. ANNEX IV.doc
Euro Contrôle Route Decision process / assessment good repute - Penalty for or conviction of a serious infringement by TM or undertaking - Proportionality check loss of good repute -If deemed proportionate; -A) declaration of unfitness TM -B) 6 months term to decide on withdrawal of the authorisation undertaking - Or, suspension or withdrawal of the authorisation undertaking due to its conduct
Euro Contrôle Route Challenges towards harmonisation and legal certainty 1. Interpretation of serious infringement in practice 2. Detection, forwarding and registrations of these infringements 3. Attribution of the serious infringements to the undertaking, TM or both? 4. Interpretation and application of the proportionality check related to the loss of good repute 5. What is rehabilitation? What contributes to a uniform application of the requisite of good repute?
Euro Contrôle Route Positions and questions Sub 1: Interpretation of serious infringements in practice Example: Driving licence expired two days? What if the most serious infringement is addressed to the driver only? Undertaking?
Euro Contrôle Route Positions and questions Sub 2: Detection, forwarding and proper registration of the MSI’s within the ERRU database Example: Are all control officers capable and aware of the fact that they detected a MSI and how they should act in line with ERRU?
Euro Contrôle Route Positions and questions Sub 3: The attribution of serious infringements to the undertaking, TM or both? Example:a To which actor or party is a specific MSI’s directed to according to national law? If the MSI is directed solely to the undertaking is it then legally possible to declare the TM?
Euro Contrôle Route Positions and questions Sub 4: Interpretation and application of the proportionality check related to the loss of good repute Example How many sanctions or convictions of serious infringements are needed in order to decide the loss of good repute of an undertaking or TM? What are the other relevant criteria and considerations when deciding upon the final loss of good repute? For example; involvement of management, intent, (gross) negligence, recidivism and additional circumstances. size company, other relevant criteria?
Euro Contrôle Route Positions and questions 5. What does rehabilitation entail? Example: The TM has passed an integrity exam with good results Rehabilitation resulting from a civil court case, ruling that the initial unfitness was unlawful The reconstitution of the transport undertaking's management
Euro Contrôle Route Will a common approach and strategy towards enforcement and implementation of legislation that regulates the requirements of good repute (the 7 MSI’s) lead to the following benefits: Fair competition? Public and road safety? Transparent government? Legal certainty? 12. Discussion 13. Discussion 12. Discussion ssion
Euro Contrôle Route Most serious infringements for the purposes of Article 6(2)(a) 1. (a) Exceeding the maximum 6-day or fortnightly driving time limits by margins of 25 % or more. (b) Exceeding, during a daily working period, the maximum daily driving time limit by a margin of 50 % or more without taking a break or without an uninterrupted rest period of at least 4,5 hours. 2. Not having a tachograph and/or speed limiter, or using a fraudulent device able to modify the records of the recording equipment and/or the speed limiter or falsifying record sheets or data downloaded from the tachograph and/or the driver card.
Euro Contrôle Route 3. Driving without a valid roadworthiness certificate if such a document is required under Community law and/or driving with a very serious deficiency of, inter alia, the braking system, the steering linkages, the wheels/tyres, the suspension or chassis that would create such an immediate risk to road safety that it leads to a decision to immobilise the vehicle. 4. Transporting dangerous goods that are prohibited for transport or transporting such goods in a prohibited or non-approved means of containment or without identifying them on the vehicle as dangerous goods, thus endangering lives or the environment to such extent that it leads to a decision to immobilise the vehicle.
Euro Contrôle Route 5. Carrying passengers or goods without holding a valid driving licence or carrying by an undertaking not holding a valid Community licence. 6. Driving with a driver card that has been falsified, or with a card of which the driver is not the holder, or which has been obtained on the basis of false declarations and/or forged documents. 7. Carrying goods exceeding the maximum permissible laden mass by 20 % or more for vehicles the permissible laden weight of which exceeds 12 tonnes, and by 25 % or more for vehicles the permissible laden weight of which does n ot exceed 12 tonnes.
Euro Contrôle Route 1, Transporting dangerous goods that are prohibited for transport Quite straight forward - transport of not stabilised or uninhibited (very) sensitive unstable explosive substances 2, Transporting dangerous goods in a prohibited or non-approved means of containment, thus endangering lives or the environment to such extent that it leads to a decision to immobilise the vehicle 3, Transporting dangerous goods without identifying them on the vehicle as dangerous goods, thus endangering lives or the environment to such an extent that is least to a decision to immobilise the vehicle
Euro Contrôle Route 2, Transporting dangerous goods in a prohibited or non-approved means of containment, thus endangering lives or the environment to such extent that it leads to a decision to immobilise the vehicle 184.108.40.206.5 in conjunction with 7.4.1 in conjunction with 3.2 (Table A) Transport of dangerous goods not allowed in tanks 220.127.116.11.5/18.104.22.168.1 Dangerous residue of transported goods on outside 22.214.171.124 Goods delivered in bulk in vehicles or containers not allowed 126.96.36.199 Not packaged according to set requirements 188.8.131.52 Not tested successfully
Euro Contrôle Route 2, Transporting dangerous goods in a prohibited or non-approved means of containment, thus endangering lives or the environment to such extent that it leads to a decision to immobilise the vehicle 184.108.40.206 Insufficient empty space to transport liquids 220.127.116.11 Incorrectly packaged and secured interior packing 18.104.22.168 Combined packaging of incompatible goods (cf. also 7.5.2/7.5.4 mixed loading prohibition) 22.214.171.124 Interior packing insufficiently resistant to internal pressure or incorrect ventilation installation 4.1 in conjunction with 3.2 (Table A) Packaging not allowed for this substance
Euro Contrôle Route 3, Transporting dangerous goods without identifying them on the vehicle as dangerous goods, thus endangering lives or the environment to such an extent that is least to a decision to immobilise the vehicle 8.1.3 in conjunction with 126.96.36.199 Signs are wholly/partially missing, are illegible or have not been installed properly 188.8.131.52.2/184.108.40.206.4 No/incorrect risk identification numbers and/or UN number 8.1.3 in conjunction with 5.3.1 No large label in accordance with chapter 5.3 220.127.116.11 in conjunction with 3.2 (Table A) Large labels display wrong class
Euro Contrôle Route Thanks for your attention! Questions ?