ROAD HAULAGE: ATTESTATIONS FOR LORRY DRIVERS
(21951)
13905/00
COM(00) 751
|
Draft Regulation amending Regulation (EEC) No. 881/92 on access to the market in the carriage of goods by road within the Community to and from the territory of a Member State or passing across the territory of one or more Member States as regards a uniform Driver Attestation.
|
| Legal base: |
Article 71 EC; co-decision; qualified majority voting
|
| |
| Department: |
Environment, Transport and the Regions
|
| Basis of consideration:
| Minister's letters of 28 March and 25 April 2001
|
| Previous Committee Report:
| HC 28-vii (2000-01), paragraph 6 (28 February 2001) and HC 28-x (2000-01), paragraph 3 (28 March 2001)
|
| To be discussed in Council:
| No date set |
| Committee's assessment:
| Legally and politically important
|
| Committee's decision:
| Cleared |
Background
8.1 We considered the proposed Regulation
on a uniform driver attestation on 28 February, when we asked
the Parliamentary Under-Secretary at the Department of the Environment,
Transport and the Regions (Lord Whitty) to address our concern
that the effect of the proposal appeared to be to reserve jobs
for European Union nationals to the detriment of third-country
nationals lawfully resident in a Member State. This appeared to
us to be inconsistent with the conclusions of the Tampere European
Council on the integration of third-country nationals lawfully
resident in the European Union.
8.2 We also asked the Parliamentary Under-Secretary
to explain the basis for the view which appeared to be taken by
his Department that it would never issue an attestation under
the proposed Regulation to a non-European Union driver.
8.3 The Parliamentary Under-Secretary replied
on 21 March 2001 and we considered this on 28 March, when we also
briefly considered a further letter received from him on that
day. We maintained our view that the proposal was incompatible
with the conclusions of the Tampere European Council, because
it would discriminate against third-country nationals lawfully
resident in an EU Member State on grounds of nationality. We also
asked the Parliamentary Under-Secretary to confirm our understanding
that an attestation would be issued to a third-country national
who held a valid heavy goods vehicle licence issued in an EEA
Member State.
8.4 We held the document under scrutiny,
pending a reply on these points, as well as a reply to the concerns
expressed by our sister Committee in the House of Lords on the
question of whether Community action under Article 71 EC was justifiable
or whether, consistently with the principle of subsidiarity, some
other solution would be preferable, such as by addressing the
questions of jurisdiction and enforcement of Member States' existing
criminal laws.
The Minister's letters
8.5 In his letter of 28 March 2001, the
Parliamentary Under-Secretary sets out the substance of his response
to the concerns expressed by our sister Committee in the House
of Lords. In response to the criticism that the requirement to
obtain an attestation would discriminate unfairly against third
country nationals, the Parliamentary Under-Secretary comments
as follows:
"This document will certify that
the driver of a vehicle engaged in international haulage is legally
entitled, in accordance with the relevant national provisions
of the Member State of establishment, to drive that vehicle in
that Member State i.e. that the driver is legally employed. The
attestation does not relate to the conditions of employment, it
merely verifies that the employment is in accordance with national
legislation. So, the regulations does not unfairly discriminate
against third country nationals."
8.6 In response to the criticism that the
proposal appeared to be based on anecdotal evidence, the Parliamentary
Under-Secretary says:
"The Commission has
conducted a year long investigation into this matter, taken evidence
from a wide range of bodies and the Member States. Having analysed
the responses, the Commission has concluded that the irregular
use of Third Country drivers in the EU is widespread, considered
the available options and come up with the proposal in question.
It has unanimous support among Member States. Since it was accepted
that EU drivers will be exempted (and it will, therefore, have
no domestic impact) the UK is also content with the proposal.
The proposed Regulation will have no effect on national employment
and driver legislation in respect of Third Country nationals.
It will merely ensure that the provisions of these laws will henceforth
be fully adhered to. Its primary purpose is to ensure that Third
Country nationals used by Community hauliers are legally employed."
8.7 Our sister Committee had also suggested
that, as the problem was one of the jurisdiction and enforcement
of Member States' existing criminal laws, ways should be examined
of improving the definition and application of those laws, with
problems of extra-territoriality[9]
being overcome by agreement and co-operation, rather than by creating
a discriminatory and unnecessary administrative burden. To this,
the Minister replies as follows:
"[The Committee] suggested that, as an alternative,
Member States might try to negotiate bilateral or multilateral
agreements. However, this would be a potentially fragmented, cumbersome
and undoubtedly lengthy process. I think that the proposed Regulation
is likely to be the most efficient means of addressing a problem
which is of concern to most Member States. In these circumstances
I believe that it is appropriate to act as a Community, to deal
with a common problem, using Community legislative instruments."
8.8 In his letter of 25 April, the Parliamentary
Under-Secretary writes to confirm our understanding that an attestation
would be issued in this country to a third country national who
holds a valid heavy goods vehicle licence issued in an EEA State.
The Parliamentary Under-Secretary writes as follows:
"In general terms, provided
a Third Country national is in possession of a work permit as
issued by the Home Office and is also the holder of a valid HGV
licence issued in another EU Member State, then the operator could
apply for a driver attestation. This would apply to a Third Country
national who obtained a HGV licence in an EEA state."
Conclusion
8.9 We thank the Parliamentary Under-Secretary
for his letters of 28 March and 25 April. We remain of the view
that the proposal will act to the detriment of third-country nationals
lawfully resident in a Member State. It is apparent from the Parliamentary
Under-Secretary's letters that a third-country national who is
entitled to drive a British-registered heavy goods vehicle and
is entitled to work in this country will need to seek an attestation,
whereas a European Union national will not. This places a burden
on the employers of such third country nationals by reason only
of their nationality, and we repeat our view that this is incompatible
with the conclusions of the Tampere European Council on the fair
treatment of third country nationals. The adoption of a measure
such as this, imposing new burdens on the employment of third
country nationals, appears to us to make this aspect of the Tampere
conclusions sound hollow.
8.10 We are grateful for the further
clarification of the statement in the Explanatory Memorandum that
the Department of the Environment, Transport and the Regions would
not issue an attestation to a non-European Union driver. We note
the confirmation now given by the Parliamentary Under-Secretary
that an operator may apply for an attestation for a third-country
national who is entitled to work in this country and who holds
a valid heavy goods vehicle driving licence issued in a European
Union or European Economic Area State.
8.11 Notwithstanding our reservations
on the substance of the proposal, we do not consider that much
is to be gained by asking further questions on it. We therefore
clear the document, albeit with reluctance.
9 In principle, a State's criminal law applies within
the national territory, applying extra-territorially only in exceptional
cases. Back
|
