Documents considered by the Committee on 15 September 2010 - European Scrutiny Committee Contents

5   Road safety




+ ADDs 1-2

COM(08) 151



Draft Directive facilitating cross-border enforcement in the field of road safety

Draft Directive facilitating cross-border enforcement in the field of road safety

Legal base(a) Article 71(1)(c) EC; co-decision; QMV

(b) Article 87(2) TFEU; co-decision; QMV

Document originated(b) 16 July 2010
Deposited in Parliament(b) 2 September 2010
Basis of considerationEM and Minister's letter of 13 September 2010
Previous Committee Report(a) HC 16-xxiii (2007-08), chapter 4 (4 June 2008) and HC 16-xxxvi (2007-08), chapter 6 (26 November 2008)

(b) None

To be discussed in Council3 December 2010
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested


5.1  In March 2008 the Commission presented a draft Directive, document (a), to establish a system intended to help Member States to recover financial penalties for road traffic offences that are committed by non-resident offenders, if enforcement does not take place while they are in the country where the offence occurred, by aiding detection of the offenders concerned. The main aim was to make it easier for Member States to pursue non-resident offenders on the same terms as those for resident offenders. It did not attempt to harmonise offences or penalties, which are a matter for each Member State, but recognised that road users are required to obey the laws of the country in which they are travelling. Nor did it introduce any new provisions or powers for the recovery of fines where offenders refuse to pay.

5.2  There is existing legislation in the field of Justice and Home Affairs, the European Framework Decision on the Mutual Recognition of Financial Penalties (2005/214/JHA), which allows penalties imposed by courts in one Member State to be enforced in another. This could be used where offenders decline to pay in response to a notification issued under this draft Directive. But the Framework Decision has not yet been fully implemented across the EU and only applies to cases that are first pursued in a national court, not to fixed penalty notices, which are issued in most speed and red light offences detected by camera in the UK.

5.3  When, in June 2008, the previous Committee considered the proposed Directive it noted that it could improve intra-EU enforcement of road traffic rules. But it asked, before considering the matter further, to hear about the Government's detailed examination of the proposal and progress in negotiations, particularly in relation to:

  • helping in a practical way Member States to pursue non-resident offenders on the same basis as they do for resident offenders;
  • the procedures and systems necessary, both for notifying non-resident offenders who have left the UK about penalties they have incurred and providing information to other Member States about UK-registered vehicles that have committed offences;
  • a workable and effective system of cross-border enforcement; and
  • penalties on vehicle keepers, rather than drivers, and any necessary amendments.

5.4  When the previous Committee considered the document again, in November 2008, it heard that discussions of the draft Directive in a Council working group had brought to light significant concerns about EU competence over criminal matters and the correct legal base for the proposal — so discussions had focussed on that issue. The Committee learnt that:

  • the concern was over whether EU provisions on enforcement must be related to the enforcement of autonomous EU rules and not, as proposed, the enforcement of national legislation;
  • in the light of this issue, a number of Member States, including the United Kingdom, had come to the view that the only legally sound way to take forward legislation on cross border enforcement was as a third pillar measure in the sphere of justice and home affairs and so had argued that the proposal should not be taken forward as a first pillar Directive;
  • the Commission, the then (French) Presidency and some other Member States remained of the view that the proposal should be taken forward as a first pillar measure, on the grounds that it would be quicker and would provide more opportunity for involving the European Parliament;
  • at the October 2008 Transport Council, 15 Member States, including the UK, expressed the view that cross-border enforcement of road safety offences should be progressed in a third pillar forum;
  • in the light of this, the Presidency had brought forward revised proposals in the working group;
  • these were based on a hybrid approach involving a first pillar measure on the exchange of vehicle registration information, but excluding the previous provisions relating to use of that data for the purpose of enforcing certain financial penalties;
  • the assumption was that the elements relating to the enforcement of penalties would be dealt with subsequently in a separate third pillar measure, but could not properly be proposed or considered in a first pillar forum;
  • however, the latest Presidency proposal had not succeeded in addressing previous concerns and had raised some new ones;
  • the Presidency text was a much wider proposal than the original, re-titled as a Directive on Measures Regarding the Improvement of Road Safety within the European Union;
  • it was no longer limited to the issue of cross-border enforcement, instead setting requirements for enforcement of road safety legislation within all Member States and provision of statistical information on the number of enforcement checks and the provision of information to drivers on the details of national legislation;
  • this had given rise to significant concerns on the grounds of subsidiarity, as these proposals were not proportionate, nor were they necessary to achieve the original objective of improving cross-border enforcement. And they would also interfere in operational policing matters, which should be the responsibility of Chief Officers of Police and not the subject of legislation at EU or national level;
  • the latest position was that the Presidency proposal seemed unlikely to be workable; and
  • as discussion of the draft Directive had focussed on the question of competence and the legal base, there had been no detailed discussion of some of the practical issues previously mentioned.[12]

5.5  In the event the French Presidency approach was rejected by a blocking minority of Member States, which included the UK, at the December 2008 Transport Council. It was therefore not possible to make further progress at that stage and subsequent Presidencies did not take the matter forward.

The Minister's letter

5.6  The Parliamentary Under-Secretary of State, Department for Transport (Mike Penning) tells us that:

  • it had been expected that the long-dormant proposal for a Directive on cross-border road safety enforcement, document (a), would be revived by the publication of a formal revision to the proposal by the Commission;
  • the Belgian Presidency has proposed, however, that negotiations should proceed under a Justice and Home Affairs legal base under Title V of the Treaty on the Functioning of the European Union, instead of the transport legal base preferred by the Commission;
  • as a result, the Commission has decided not to issue a formal revision of the proposal; and
  • negotiations are therefore currently being taken forward on the basis of the Presidency's own informal text, document (b).

The Minister also alerts us to his Explanatory Memorandum on the new document mentioning the possibility of a UK opt-in decision.

The new document

5.7  The Belgian Presidency has emphasised that its text, document (b), is a preliminary outline only and aspects of the proposal, including the legal base, may be subject to changes during the negotiations. The Presidency re-draft is similar to the Commission's original proposal, and contains the following key points:

  • a suggested police co-operation legal base (article 87(2) TFEU), but negotiated in the Transport Council — whether or not this legal base remains the UK must decide whether or not to opt-in (as the subject matter of the Directive would concern Title V TFEU elements);
  • requiring use of an electronic system for exchange of data on vehicle registration/ownership — this would enable the "state of offence" to access the database of the "state of registration", to obtain information on the vehicle owner based on the registration mark, without needing any specific action from the state of registration other than supporting the database, but with a right for the state of registration to refuse to provide the requested data in exceptional cases;
  • adequate data protection safeguards; and
  • coverage of all traffic offences (to avoid problems specifying which offences are covered), but highlighting four main road safety offences in particular (speed, red light, seat belt and drink driving).

5.8  The proposal is intended to enable Member States to apply their own national laws and procedures to road traffic offences committed in their territory, by sending an information notice to the registered owner of an offending vehicle asking them to pay the fine (or where appropriate to identify the offending driver). The Framework Decision on the Mutual Recognition of Financial Penalties (2005/214) would facilitate enforcement, again where the state of offence chooses to pursue it.

The Government's view of the new document

5.9  The Minister recalls, in relation to subsidiarity, that the Commission's assessment of the original proposal was that its objectives could not be met by individual Member States — countries with good enforcement practices have a better road safety record and automated enforcement devices (that is cameras) have proved effective for offences such as speeding. He continues that:

  • it is apparent to the Government that considerable numbers of cross-border offences are detected but enforcement action is not effective at present;
  • there are already some bilateral agreements between Member States to address this issue, but not all are working effectively;
  • the proposal aims to establish a common system for cross border data exchange to facilitate enforcement that will solve the problems encountered in existing agreements — primarily relating to data exchange — and avoids the development of an inefficient patchwork of bilateral agreements;
  • more detail is needed on the text for the Government to take a definitive view about whether the objectives of the proposal (or parts of it) could be met by individual Member States; and
  • the proposal does not cover the harmonisation of road traffic offences or penalties for those offences, which are a matter for Member States — it aims to enable Member States to enforce against non-resident offenders their own financial penalties for offences committed under their own road traffic legislation on their territory, on the same basis as would be applied to resident offenders.

5.10  Turning to the substance of the proposal the Minister says that:

  • the Government attaches considerable importance to road safety, and indeed the UK has the best record for road safety in the EU;
  • it will want to consider how this proposal can improve road safety for UK citizens at home and abroad;
  • analysis of the original proposal was that the number of lives that might be saved in the UK was of the order of zero to two deaths per year and around zero to 50 serious injuries — this is based on the number of casualties in incidents where excessive speed or passing a red light by a foreign registered vehicle were known to be a factor and on assuming a casualty saving of around 0%-50%;
  • the broad principles of the proposal as amended by the Presidency are proportionate to the issue and allow for Member States' own national practices on penalties and enforcement;
  • the Government will, however, need to consider the practical issues that would be involved, including the procedures and systems that would be needed, both for notifying non-resident offenders who have left the UK about penalties they have incurred and for providing information to other Member States about UK-registered vehicles that have committed offences;
  • it does not want to place undue burdens on enforcement authorities that are disproportionate to the practical outcome; and
  • while this proposal is targeted at the most important offences, experience suggests that in practice financial penalties are not a huge deterrent.

5.11  The Minister also tells us that during negotiations the Government will be seeking to clarify how the proposed Directive relates to the Prüm Council Decision (2008/615/JHA) and the role that EUCARIS (the European Car Information System — the central database based in the Netherlands, through which Member States can exchange data) could have in the implementation of this Directive. He says that:

  • Article 12 of the Decision states that the exchange of vehicle registration data shall take place in connection with criminal offences and other offences coming within the jurisdiction of the courts or the public prosecution service;
  • this would suggest that the Decision relates to all criminal road traffic offences (but not decriminalised matters such as some parking contraventions, which are not 'offences'); but
  • there is a further qualification in the 15th recital which states that, because of "limited technical capabilities available for transmitting data", exchanges of vehicle registration data can be limited to serious crimes.

5.12  Reminding us that for a proposal pursuant to Title V TFEU the UK may choose under the Title V Protocol if it wishes to opt-in, within three months of the proposal being presented to the Council, the Minister tells us that the Government considers that its opt-in will apply to this proposal given the Title V subject matter, even though the Commission's original proposal was not a Title V measure. He says that:

  • the Government is considering which act in this context constitutes the presentation of a proposal to the Council for the purposes of the Title V Protocol, such as to trigger the three-month opt-in period;
  • one possibility is that the circulation of the Presidency text on 16 July 2010 was such an act;
  • the Presidency text, however, could be construed as merely a proposal for discussion and does not, itself, determine what the legal base should be;
  • another possibility, therefore, is that a further text circulated following an endorsement of the Title V legal base in COREPER on 15 September 2010, as an agreed basis for continuing negotiations, would constitute the presentation of a proposal to the Council; and
  • circulation of a further text after the 15 October 2010 meeting of the Transport Council is a further possibility.

The Minister undertakes that the Government will update us (and the Lords European Union Committee) as soon as this highly unusual question has been resolved.

5.13  The Minister continues that the factors the Government will be considering in deciding whether to opt-in include:

  • road safety outcome for both UK residents and the EU;
  • costs associated with implementing the proposed Directive; and
  • wider implications in respect of EU, including in relation UK sovereignty and the principles of subsidiarity.

5.14  Before commenting on the financial implications of the proposal the Minister tells us that the Government is preparing an impact assessment, which will be submitted to us separately, and that it is possible that more details will emerge about the proposed Directive during the next few weeks, enabling a more precise assessment to be made. He then says of the main financial implications that:

  • in the UK, in relation to offences committed in other Member States by UK registered vehicles, the main financial costs will be borne by police services, which are the main enforcement body, and by DVLA, which holds data on UK registered vehicles and drivers (and so would need to provide such information to other Member States;
  • the level of costs would depend on the number of offences committed by non-resident vehicles in the UK and by UK vehicles in other Member States;
  • costs would be offset by the additional financial penalties recovered and by the value of any resulting reduction in the number of deaths and injuries caused by road accidents;
  • at the time of the original proposal the Commission estimated that across the EU the costs of this proposal would be €5-10 million (£4.116 million-8.233 million) to establish the information exchange system, as a one-off investment, with annual costs of €5-6.5 million (£4.116 million-5.351 million) for the additional enforcement effort involved;
  • the set-up costs for each Member State are estimated as €0.2-0.3 million (£ 0.164-0.248 million) in addition to central EU costs;
  • the Department for Transport's appraisal guidance recommends an optimism bias adjustment of 200% for IT projects — on that basis, estimated cost would be £0.49-0.74 million;
  • in 2008 the Government estimated that set-up costs for DVLA and UK police forces would be of the order of £4.5 million (£1.51 million actual costs plus 200% optimism bias), although it is considering whether that estimate is now too high;
  • the Government estimates that the total annual enforcement cost for pursuing non-resident offenders for offences in the UK arising directly from the Directive could be £5.7 million;
  • there may be additional costs, not directly related to this Directive, where the UK authorities pursue enforcement action under the European Framework Decision on the Mutual Recognition of Financial Penalties, which will allow penalties imposed by courts in one Member State to be enforced in another;
  • this procedure could be used in cases where offenders decline to pay in response to a notification issued under the proposed Directive — as most of the penalties concerned are fixed penalties, there would first need to be additional court action in the UK, which could cost hundreds of pounds per case and so would be unlikely to be cost effective;
  • where UK-registered vehicles are detected committing speeding, red light, drink drive or seat belt offences in other Member States, there will be costs for the UK vehicle registration authorities (that is DVLA) in providing information to those Member States, estimated at £40,000 annually;
  • where notification issued under the proposed Directive leads to penalties being paid, there would be financial benefits — the total amount of potential revenue that could be recovered is £4.6 million;
  • it is likely, however, that a proportion would remain unpaid;
  • the actual amount recovered might therefore be in the range £1.4-3.2 million, assuming that between 30% and 70% of fines were paid when requested, but the detail of the proposed Directive may affect this figure; and
  • there would be further benefits arising from any reduction in the numbers killed or injured in road accidents as a result of improved enforcement of EU registered vehicles — based on the casualty figures assumed and the Government's standard valuation of casualties, the total potential casualty saving benefit for the UK as a whole has an annual value of £9.8 million.

5.15  The Minister also tells us that the Scottish Executive has highlighted the importance of drug driving and of having the right definition of vehicles in the proposal.


5.16  We are grateful to the Minister for his account of where matters stand on this proposed Directive, particularly in relation to the legal base and the possibility of a UK opt-in. However before considering the matter further we should like to hear from the Government about:

  • timing of consideration, by both Government and Parliament, of a possible opt-in;
  • the Government's developed view of the factors the Minister mentions as relevant to an opt-in decision;
  • its further consideration of subsidiarity and of the practical consequences of the proposal;
  • clarification of the relationship of the proposal to the Prüm Decision;
  • the Government's impact assessment; and
  • insofar as not otherwise covered, the substantive points raised by the previous Committee in June 2008.

Meanwhile the documents remain under scrutiny.

12   See headnote Back

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