1 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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| Department | Transport
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| Basis of consideration | SEM of 21 December 2010
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| 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)
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| To be discussed in Council | 31 March 2011
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| Committee's assessment | Politically and legally important
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| Committee's decision | For debate in European Committee A
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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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