Documents considered by the Committee on 12 January 2011 - European Scrutiny Committee Contents


1 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 considerationSEM of 21 December 2010
Previous Committee Reports(a) HC 16-xxiii (2007-08), chapter 4 (4 June 2008), HC 16-xxxvi (2007-08), chapter 6 (26 November 2008), HC 428-ii (2010-11), chapter 5 (15 September 2010) and HC 428-ix (2010-11), chapter 5 (24 November 2010)

(b) HC 428-ii (2010-11), chapter 5 (15 September 2010) and HC 428-ix (2010-11), chapter 5 (24 November 2010)

To be discussed in Council31 March 2011
Committee's assessmentPolitically and legally important
Committee's decisionFor debate in European Committee A

Background

1.1 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.

1.2 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.

1.3 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).

1.4 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. It 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.

1.5 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;[1]
  • the Government's impact assessment; and
  • insofar as not otherwise covered, the substantive points raised by the previous Committee in June 2008.

1.6 In November 2010 we were reminded 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. We then heard 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 was therefore still in question;
  • as the situation was fluid, the Government was now considering a position on the opt-in trigger which would enable it to find a solution that would be 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);
  • such a trigger would give the Government the requisite time to decide whether to opt in and would not undermine Parliamentary scrutiny.
  • at the forthcoming December 2010 Transport Council the Belgian Presidency would like to achieve what it referred to as a 'conclusion on political agreement' on the draft Directive;
  • this was unusual wording, but in practice it would consist of a political debate on the legal base (if the matter had 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 was towards an eventual political agreement around the text as it was developing;
  • there would 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 would 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 had given assurances that it would 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 would be respected;
  • formal political agreement was therefore not expected to be reached until the Hungarian Presidency;
  • the Government currently had a Parliamentary scrutiny reserve on this proposal, which would not be lifted at the Council;
  • while a 'conclusion on political agreement' was not a standard description for a Council agenda item, the Government was satisfied that this format would 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 was reached;
  • discussions of the process had been particularly complicated and at this stage it was still not clear precisely how any change of legal base might be deemed to have taken place if the Council and Commission had not reached an agreement on this prior to the December 2010 Transport Council;
  • the aim of the proposal was 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 believed that the Title V legal base was appropriate given the substance and aim of the proposal, a position which was 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 Government thought it unlikely that there would be a formal vote on the legal base issue, it was 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 was unlikely that this point would be clarified in time for it to be communicated to us ahead of the Council; and
  • in these circumstances, and as such a change could only be made by Member States if there was 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.

1.7 On the possibility of an opt-in and on the substance of the draft Directive the comments we heard included that:

  • as far as the Government's wider consideration of the proposal was concerned, it did not as yet have a formal policy view on whether or not the UK should opt into the measure;
  • it was, however, concerned about the set-up and implementation costs as outlined in the Government's latest impact assessment; and
  • the Government was, however, also aware of the risks of not opting in, especially since this might strain relationships with other Member States, where many road traffic offences are committed by non-resident drivers.

We also had further information about the relationship of the draft Directive to the Prüm Decisions, about its compatibility with the subsidiarity principle and about the Government's latest impact assessment, the estimates of which were qualified by some key assumptions, sensitivities or risks.

1.8 We noted the uncertainty as to how a Title V TFEU legal base for the proposal could be adopted and agreed, in terms of paragraph (3)(b) of the Scrutiny Reserve Resolution of 17 November 1998, that the Government could signal its agreement for the legal base change to take place. However that was 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 remained under scrutiny. As for an opt-in and the other substantive issues we noted that the Government had not yet formed a policy view. We said that before considering the documents again we wished to hear about the Government's decided policy view, particularly in the light of its present impact assessment.[2]

The Supplementary Explanatory Memorandum

1.9 The Parliamentary Under-Secretary of State, Department for Transport (Mike Penning), reports that:

  • at the December 2010 Transport Council the Government stated its view that the Council could only proceed with this matter under a Justice and Home Affairs legal base;
  • all Member States were in favour of proceeding under such a legal base;
  • whilst there was no vote or political agreement on the text of the draft Directive at the Council, the Presidency concluded that there was consensus on a general direction of travel towards political agreement, and acknowledged the UK's rights under Protocol 21 TFEU to have the necessary period to consider whether or not to opt in;
  • at the Council the Government also said that, given the Title V legal base, Article 3(1) of Protocol 21 to the TFEU applies and the UK would not be bound by the measure unless it notifies the Presidency in writing of its wish to participate, within three months of the proposal being presented to the Council;
  • the Government reserved its position on the substance of the proposal, pending formal consideration of its stance and consultation with Parliament during the permitted three month period;
  • the UK and Ireland both tabled minute statements to this effect;
  • the Commission, however, still cannot accept a Justice and Home Affairs legal base;
  • the Council will need, therefore, to maintain unanimity on this change throughout the course of the negotiations with the European Parliament; and
  • it has been accepted that the Government's three month opt-in period under Protocol 21 TFEU started on 3 December 2010 and will end on 3 March 2011.

1.10 The Minister comments that:

  • the Government welcomes the change to the legal base;
  • it is now in the process of formalising its position on the draft Directive, which will be established as part of its three-month opt-in process;
  • it notes that the eight week period for Parliament to opine will end on 27 January 2011, shortly after which the Department for Transport will consult other government departments about a formal decision on whether or not the UK should opt in to this Directive;
  • whilst the Government supports the aim of improving cross-border enforcement, it considers that any measures to achieve that should be practical, effective and proportionate and should not put any disproportionate burdens on enforcement, driver licensing and vehicle registration authorities in the UK or other Member States;
  • in all Member States there is likely to be a large proportion (possibly as high as 70-75%) of people who are caught speeding etc., and are not registered in the Member State of offence, who do not pay their fines when notified of their alleged offences;
  • France alone has indicated that as many as 500,000 speeding offences caught on camera each year are perpetrated by UK licensed vehicles, which are getting away with not paying a fine;
  • there are likely to be many more such offences by UK drivers in other Member States;
  • nationally, there is only a small issue in the UK relating to foreign-registered cars committing speeding and red light offences — approximately 3-4%, compared with approximately 25% in France; and
  • after 2 March 2011 further negotiations will take place to continue to shape and finalise the Directive under the Hungarian Presidency
  • that Presidency has so far only given basic indications of its intentions for the Directive, but it recognises that no formal political agreement or common position can be voted on until the UK and Ireland's three month opt-in period has expired and the opt-in decisions have been made.

1.11 Turning to the financial implications of the proposal the Minister says that:

  • following on from undertaking its impact assessment (described in our last report on this issue), the Government's main concerns relate to the costs associated with the proposed Directive and the added value for the UK taking into account that the legal system makes the driver, rather than the registered keeper, liable for the relevant road traffic offences;
  • currently, the information exchange under the draft Directive is based upon exchange of the registered keeper's information and does not introduce any new provisions or powers to deal with registered keepers who refuse to disclose the driver's identity (where the vehicle keeper was not the offender);
  • in this case the national law of the Member State of offence would apply, but this would only be enforceable once the liable party had returned to the Member State of offence;
  • the Government is considering the implications for UK domestic courts of cases brought for the non-payment of fines under the European Framework Decision on the Mutual Recognition of Financial Penalties (implemented in the UK in late 2009) for the transferral of enforcement of cases to these courts, where these fines are over €70;
  • based on current UK fine levels for the relevant offences covered by the proposed Directive, every ticket issued in the UK to the driver of a foreign registered vehicle and enforced using the proposed Directive and, where necessary, the Framework Decision on the Mutual Recognition of Financial Penalties will ultimately result in a net loss to the Treasury, so setup costs are never likely to be recovered and there would be a constant outgoing resource expenditure;
  • any benefits this proposal would bring to the UK are therefore likely to be far outweighed by associated costs, according to the impact assessment;
  • thus, the Government will look to scrutinise more closely the evidence given in the impact assessment during the three month opt-in period, to assess whether there is a viable way for the UK to consider adopting this Directive and whether the Government would wish to opt in at this stage or not; and
  • the Government would retain the right to opt in at a later stage after the Directive has been adopted and could give further consideration to doing so once all the negotiations are complete and the final provisions of the Directive have been established.

Conclusion

1.12 We are grateful to the Minister for this latest account of where matters stand on this proposed Directive. We note the considerable doubts as to whether the UK should opt into the proposal, at least at this stage. In these circumstances we think it right to recommend that the documents be debated in European Committee A, in order that Members might explore further with the Government the merits and timing of an opt-in. Such a debate would also allow Members to discuss any further developments on substantive issues, particularly in relation to the driver/registered keeper question.

1.13 The debate we recommend should take place before 27 January 2011, the date the period for Parliament to comment on the opt-in options expires.





1   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

2   See headnote. Back


 
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