5 Road safety
(a)
(29587)
7984/08
+ ADDs 1-2
COM(08) 151
(b)
(31918)
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Draft Directive facilitating cross-border enforcement in the field of road safety
Draft Directive facilitating cross-border enforcement in the field of road safety
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Legal base | (a) Article 71(1)(c) EC; co-decision; QMV
(b) Article 87(2) TFEU; co-decision; QMV
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Document originated | (b) 16 July 2010
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Deposited in Parliament | (b) 2 September 2010
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Department | Transport
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Basis of consideration | EM and Minister's letter of 13 September 2010
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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
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To be discussed in Council | 3 December 2010
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Committee's assessment | Legally and politically important
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Committee's decision | Not cleared; further information requested
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Background
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.
Conclusion
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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