Documents considered by the Committee on 24 November - European Scrutiny Committee Contents


5 Road safety

(a)

(29587)

7984/08

+ ADDs 1-2

COM(08) 151

(b)

(31918)

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

DepartmentTransport
Basis of considerationMinister's letter of 23 November 2010
Previous Committee Report(a) HC 16-xxiii (2007-08), chapter 4 (4 June 2008), HC 16-xxxvi (2007-08), chapter 6 (26 November 2008) and HC 428-ii (2010-11), chapter 5 (15 September 2010)

(b) HC 428-ii (2010-11), chapter 5 (15 September 2010)

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

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. 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.

5.2 The previous Committee considered the proposed Directive twice. On the second occasion, 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;
  • 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;
  • 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; and
  • 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.

5.3 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. However, we heard, in September 2010 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 had proposed, however, that negotiations should proceed under a Justice and Home Affairs legal base under Title V of the TFEU, instead of the transport legal base preferred by the Commission;
  • as a result, the Commission had decided not to issue a formal revision of the proposal;
  • negotiations were therefore currently being taken forward on the basis of the Presidency's own informal text, document (b).

5.4 We heard further that the Belgian Presidency had emphasised that its text was a preliminary outline only and aspects of the proposal, including the legal base, might be subject to changes during the negotiations. The Presidency re-draft was similar to the Commission's original proposal, and contained 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 remained the UK would have to 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).

5.5 The Presidency's proposal was 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 would facilitate enforcement, again where the state of offence chose to pursue it.

5.6 We concluded that 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, Council Decision 2008/615/JHA;[13]
  • the Government's impact assessment; and
  • insofar as not otherwise covered, the substantive points raised by the previous Committee in June 2008.

Meanwhile both documents, the Commission's original proposal and the Presidency's text, remained under scrutiny.[14]

The Minister's letter

5.7 The Parliamentary Under-Secretary of State, Department for Transport (Mike Penning), first recalls that he had told us in September 2010 that, because the Presidency, rather than the Commission, had proposed that the draft Directive should have a Title V TFEU legal base, not a transport one, this meant there was no conventional trigger point for the UK's three month opt-in period and that consideration was being given to several options, including taking as the trigger point the circulation of a text following the expected endorsement of the Title V legal base in COREPER in September 2010. He then tells us that:

  • at the COREPER meeting the Commission noted the clear majority in the Council in favour of a police co-operation legal base and indications were that it might issue a formal revised proposal on this basis — this would have automatically provided a formal trigger for the opt-in period and Member States therefore awaited the publication of the revised proposal;
  • however, the Commission decided not to proceed in this way and the trigger date for the opt-in is therefore still in question;
  • as the situation is fluid, the Government is now considering a position on the opt-in trigger which would enable it to find a solution that is as close as possible to the trigger as described in the Title V Opt-in Protocol (which refers to a proposal being presented to the Council pursuant to that Title); and
  • such a trigger would give the Government the requisite time to decide whether to opt in and would not undermine Parliamentary scrutiny.

5.8 The Minister reports that:

  • at the 2 December 2010 Transport Council the Belgian Presidency would like to achieve what it refers to as a 'conclusion on political agreement' on the draft Directive;
  • this is unusual wording, but in practice it will consist of a political debate on the legal base (if the matter has not been resolved with the Commission prior to the Council meeting) and the policy substance of the proposal, followed by a Presidency conclusion that the general direction of travel is towards an eventual political agreement around the text as it is developing;
  • there will be no vote taken or implied on a political agreement at this Council;
  • Presidency conclusions are not legally or politically binding on Member States and effectively the Presidency will be summarising and endorsing the approach taken in the negotiations, whilst leaving open the possibility for further negotiation on points of detail within that overall approach;
  • the Presidency has given assurances that it will also stress in its summing up that the UK and Ireland right to have three months to consider whether to opt in to the proposal will be respected;
  • formal political agreement is therefore not expected to be reached until the Hungarian Presidency;
  • the Government currently has a Parliamentary scrutiny reserve on this proposal, which will not be lifted at the Council;
  • while a 'conclusion on political agreement' is not a standard description for a Council agenda item, the Government is satisfied that this format will protect the UK's rights under the Title V opt-in, as well as allowing completion of full Parliamentary scrutiny on both the decision on UK participation and on the substance itself before any formal political agreement is reached.

5.9 The Minister then continues further on the correct process for this proposal, saying that:

  • discussions of the process have been particularly complicated and at this stage it is still not clear precisely how any change of legal base might be deemed to have taken place if the Council and Commission have not reached an agreement on this prior to the December 2010 Transport Council;
  • the aim of the proposal is to enable Member States to pursue fines and hence recover revenues from offenders resident in other Member States on the same basis as they do for resident offenders, thereby improving the deterrent effect of enforcement on road safety;
  • the Government believes that the Title V legal base is appropriate given the substance and aim of the proposal, a position which is now supported by all Member States;
  • it would therefore wish to join other Member States in supporting the change of legal base, if Ministers should be asked at the Council for an endorsement of it, while reserving its position on the substance of the proposal;
  • however, although the Minister thinks it is unlikely that there will be a formal vote on the legal base issue, he is unsure at the moment whether the form of such an endorsement would in effect constitute a decision that would fall within either the spirit or the letter of the Scrutiny Reserve Resolution;
  • it is unlikely that this point will be clarified in time for it to be communicated to us ahead of the Council;
  • in these circumstances, and as such a change could only be made by Member States if there is unanimous agreement, the Government would like our consent for it signal agreement for the legal base change to take place, pending completion of scrutiny at a later date.

5.10 Turning to the possibility of an opt-in and to the substance of the draft Directive the Minister tells us that:

  • as far as the Government's wider consideration of the proposal is concerned, it does not as yet have a formal policy view on whether or not the UK should opt in to the measure;
  • it is, however, concerned about the set-up and implementation costs as outlined in the Government's latest impact assessment (which the Minister encloses with his letter);
  • there are also concerns with the implications for those countries, such as the UK, where liability is on the driver rather than the vehicle owner — it is not clear how the proposed Directive would cover this;
  • the Government is, however, also aware of the risks of not opting in, especially since this may strain relationships with other Member States, where many road traffic offences are committed by non-resident drivers; and
  • further consideration of these matters will be needed during the opt-in period.

5.11 On the relationship of the draft to the Prüm Decisions the Minister says that:

  • a number of Member States are in the early stages of developing the technical solution for exchanging information to combat serious crime and terrorism under the Prüm Decisions and it might be possible that the system for this proposal could be an extension of that system in terms of the data sharing functionality;
  • the Driver and Vehicle Licensing Agency (DVLA) already exchanges information through an electronic network, the European Vehicle and Driving Licence Information System (EUCARIS) for vehicle registration and driver licensing purposes, the use of which is authorised by the Prüm Decisions;
  • the preferred network would require the registration authorities to act as the hubs for requesting and forwarding data to ensure that appropriate safeguards and control are in place for those accessing the data;
  • however, this would require an automated process for the enforcement agencies pursuing the penalties, which would need full consultation with relevant UK stakeholders;
  • some Member States, including the UK, have argued that it should be a requirement in the Directive that the letter of notification be in the language of the person suspected of an offence, otherwise there is a danger that people will not have a proper opportunity to contest allegations or mount a defence and that they may ignore fine notices in foreign languages until such time as enforcement through their national courts is sought;
  • in the sense that this proposal relates to the exchange of information taken from vehicle licensing databases, there is a relation to the Prüm Decisions with this proposed Directive;
  • however it is clear from Recital 15 of the Prüm Council Decision 2008/615/JHA "that Member States may decide to give priority to combating serious crime bearing in mind the limited technical capabilities available for transmitting data"; and
  • the Government intends to use this recital and, therefore, this proposal can be seen, in terms of scope, to be additional to the Prüm Decisions as opposed to a duplication.

5.12 On subsidiarity the Minister says that:

  • there is a clear justification for a proposal of this nature at EU level given the cross-border nature of the problem identified and the possibility it allows to avoid a scenario where each Member State agrees bilateral agreements with the other 26;
  • the current draft is clear that the principle of territoriality applies, by referring back to the national law of the Member States in the definitions of the offences and in the provision on the information letter to the vehicle holder; and
  • it in no way affects, therefore the UK's current national rules regarding road safety.

5.13 The Government's latest impact assessment, which we received from the Minister, shows:

  • monetised present value costs over ten years as £89.29-92.53 million, with a best estimate of £90.91 million;
  • monetised present value benefits over ten years as £7.23-178.32 million, with a best estimate of £44.50 million;
  • a best estimate of monetised present values net benefits over ten years as -£46.41 million;
  • no non-monetised costs; and
  • non-monetised benefits as being fine revenue regarding UK registered vehicles in other Member States being transferred to UK courts where the offender does not voluntarily respond, improved air quality and reduced noise arising from greater compliance with speed limits and reduction in damage only accidents.

The assessment estimates are qualified by some key assumptions, sensitivities or risks:

  • the same number of UK registered vehicle offences across member States as non-UK registered vehicle offences in the UK (79,000) — this is a very uncertain assumption, because of a lack of evidence;
  • 30% of fines being paid voluntarily when requested;
  • 21 casualties in Northern Ireland classified as "killed or seriously injured" as a result of non-UK registered vehicle offences all being seriously injured (as with Great Britain); and
  • a high level of uncertainty around figures for reduced UK citizen fatalities, because of differences between UK and EU estimates — which the Government hopes to resolve.

5.14 The assessment concludes:

"Due to the lack of available evidence and resulting caveats to the analysis, there is currently no preferred option on whether to opt in or remain out of this Directive, if it is implemented. The costs and benefits monetised suggest the costs outweigh the benefits; however there are a number of impacts not quantifiable at this stage."

Conclusion

5.15 We are grateful to the Minister for his latest account of where matters stand on this proposed Directive. We note the uncertainty as to how a Title V TFEU legal base for the proposal could be adopted and agree, in terms of paragraph (3)(b) of the Scrutiny Reserve Resolution of 17 November 1998, that the Government may signal its agreement for the legal base change to take place. However that is on the understanding that we would be informed immediately that the eight-week period for scrutiny of a possible opt-in had begun and that, of course, the documents remain under scrutiny.

5.16 As for an opt-in and the other substantive issues we note that the Government has not yet formed a policy view. Before we consider the documents again we wish to hear about the Government's decided policy view, particularly in the light of its present impact assessment.





13   The Decision and its implementing Decision 2008/616/JHA provide for law enforcement cooperation in criminal matters primarily related to exchange of fingerprint, DNA and vehicle registration data. Back

14   See headnote. Back


 
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