7 Road safety
| Committee's assessment
| Legally and politically important |
| Committee's decision | Not cleared; further information awaited
|
| Document details | Draft Directive facilitating cross-border exchange of information on road safety related traffic offences: (36243), 12107/14 + ADD 1, COM(14) 476
|
| Legal base | Article 91 TFEU; co-decision; QMV
|
| Department | Transport
|
Summary and Committee's conclusions
7.1 In March 2008 the Commission proposed a Directive
facilitating cross border enforcement in the field of road safety.
The proposal was published with a transport legal base —
Article 71(1)(c) of the Treaty establishing the European Community.
In 2010 Member States unanimously agreed to take the proposal
forward with a JHA legal base — Article 87(2) TFEU. In October
2011 the proposal was adopted accordingly as Directive 2011/82/EU.
The purpose of the Directive was to support Member States in the
investigation of offences committed by drivers in other Member
States and covered eight offences.
7.2 As the measure included cited a JHA legal base,
the UK and Ireland's opt-in applied and Denmark was automatically
not a party. The UK and Ireland decided not to opt in.
7.3 The Commission did not agree with the change
of legal base and petitioned the Court of Justice in 2012. In
May this year the Court agreed with the Commission and annulled
the Directive, but maintained its effects until the entry into
force within a reasonable period of time of a new Directive based
on Article 91(1)(c) TFEU, a transport legal base.
7.4 The Commission has therefore issued this new
proposal for a Directive facilitating cross-border exchange of
information on road safety related traffic offences. The content
of the new proposal is the same as the annulled Directive 2011/82/EU,
with the exception of the change of legal base, deletion of text
about the non-application of the Directive to those Member States
(including the UK) that had not been party to the original measure
and associated amendments in the recitals.
7.5 The Government tells us that, as with previous
proposals on this subject, the Government has five broad themes
of concern. These are pursuit of registered keepers for fines,
transfer of court cases between Member States, data protection,
costs of the mechanism and the relationship to Prüm Council
Decisions on data exchange.
7.6 We understand that it is possible that the Italian
Presidency will seek agreement on this measure at the Transport
Council of 8 October.
7.7 We recognise, given that many Member States
will have already gone far in transposing the annulled Directive,
there will be little appetite for changing the substance of the
new proposal. Nevertheless, we note the concerns the Government
has expressed to us and urge it to press for amelioration of those
concerns, even though this may necessitate the Presidency slowing
the push for Council agreement.
7.8 However, we note also that a two-year deadline,
say from April 2015, for transposition by the UK (and Denmark
and Ireland) would allow time for amendments to the Directive
helpful to the UK, following the Commission's review of the Directive,
due by November 2016.
7.9 We await a report from the Government on any
success it has on slowing the Council consideration of the draft
Directive and in achieving amendments to it. Meanwhile the document
remains under scrutiny.
7.10 Additionally we observe the comment that
"In the light of the ECJ judgment, the Government will not
be asserting the JHA opt-in in relation to this proposal".
This implies that it is normally open to the UK to exercise an
opt-in option for legislation that has a non-JHA base. As the
Government well knows we do not accept this contention.
Full details of the documents:
Draft Directive facilitating cross-border exchange of information
on road safety related traffic offences: (36243) 12107/14 + ADD
1, COM(14) 476.
Background
7.11 In March 2008 the Commission proposed a Directive
facilitating cross border enforcement in the field of road safety.
The proposal was published with a transport legal base —
Article 71(1)(c) of the Treaty establishing the European Community).
Discussions in working group and Council meetings during 2008
focussed on the legal base for the proposal, which a majority
of Member States felt should be a Justice and Home Affairs (JHA)
rather than a transport legal base. The Commission and some Member
States did not agree with this view which led to a stalling of
negotiations until 2010 when Member States unanimously agreed
to take the proposal forward with a JHA legal base — Article
87(2) TFEU. In October 2011 the proposal was adopted accordingly
as Directive 2011/82/EU.
7.12 The purpose of the Directive was to support
Member States in the investigation of offences committed by drivers
when driving in other Member States. It was seen by the Commission
as the first step in tackling this issue and there were eight
offences to which the Directive related:
· speeding;
· failure to stop at a red light;
· use of a forbidden lane;
· drink driving;
· drug driving;
· failure to wear a seat-belt;
· failure to wear a safety helmet; and
· use of a mobile phone whilst driving.
7.13 As the measure included cited a JHA legal base,
the UK and Ireland's opt-in applied and Denmark was automatically
not a party. The UK and Ireland decided not to opt-in.
7.14 The Commission did not agree with the change
of legal base and petitioned the Court of Justice (ECJ) in 2012.
In May the Court (Decision C-43/12 of 6 May) agreed with the Commission
and annulled the Directive, but maintained its effects until the
entry into force within a reasonable period of time (which may
not exceed twelve months from the date of the judgment) of a new
Directive based on Article 91(1)(c) TFEU, a transport legal base.
The document
7.15 The Commission has therefore issued this new
proposal for a Directive facilitating cross-border exchange of
information on road safety related traffic offences. The content
of the new proposal is the same as the annulled Directive 2011/82/EU,
with the exception of the change of legal base, deletion of text
about the non-application of the Directive to those Member States
(including the UK) that had not been party to the original measure
and associated amendments in the recitals.
7.16 The draft Directive would therefore govern the
same eight offences. As before, it would not harmonise offences
or penalties, which are a matter for each Member State, but would
recognise that road users are required to obey the laws of the
country in which they are travelling. Nor would it introduce any
new provisions or powers for the recovery of fines where offenders
refuse to pay.
7.17 In line with the annulled Directive, the proposal
provides for the Member State where an offence is committed to
send details of the vehicle to the Member State where it is registered,
which in return would provide details of the vehicle keeper. It
would be for the Member State where the offence was committed
to pursue the case, contacting the vehicle keeper to pay the penalty,
or to identify the driver of the vehicle if it was not themselves,
in which case the driver could in turn be pursued. However, there
are no provisions in the proposal for further action if vehicle
keepers or drivers fail to respond to any notification issued
under the Directive.
7.18 Directive 2011/82/EU provided that data was
to be shared and processed in line with Framework Decision 2008/977/JHA.
In the new proposal this has been changed to the Data Protection
Directive 95/46/EC, which was the case with the original 2008
proposal. As the current proposal does not have a JHA base, the
Commission considers that the Framework Decision is no longer
applicable so the relevant principles of data exchange and protection
are those set out in Directive 95/46/EC.
7.19 There are references in the text of the draft
Directive to the vehicle registration chapter of the Prüm
Council Decisions on data exchange.
7.20 The draft Directive has two annexes which detail
the information sets to be shared through EUCARIS[20]
(separated into mandatory and optional fields) and template letters
to be sent when writing to the registered keepers of vehicles
which have been caught committing offences. The proposal includes
provision for a single power to amend the Directive by Delegated
Act, which would allow for the amendment of the first annex (the
national database search criteria) in light of technical progress.
7.21 Article 11 of the proposal would require the
Commission to report to the European Parliament and the Council
on the effectiveness of these measures by 7 November 2016 —
three years after the original Directive entered into force. In
this report, the Commission would assess whether the scope of
the Directive should be broadened by adding additional offences
and might consider the harmonisation of penalty point regimes
if appropriate.
7.22 The Commission has not issued an impact assessment
for the proposal as it considers that there is nothing fundamentally
new within the text, therefore the costs remain the same.
The Government's view
7.23 In his Explanatory Memorandum of 19 August 2014
the Parliamentary Under-Secretary of State, Department for Transport
(Mr Robert Goodwill), says that, as with previous proposals on
this subject, the Government has five broad themes of concern.
These are pursuit of registered keepers for fines, transfer of
court cases between Member States, data protection, costs of the
mechanism and the relationship to Prüm.
7.24 The Minister explains first, in relation to
pursuit of registered keepers, that:
· it is proposed that Member States, having
detected that at least one of the eight offences covered by the
Directive had been committed, would be able to request the registered
owner or keeper details of the vehicle involved, that the offence
would be punishable through the national laws of the country where
it was committed and the pertinent fines issued and payable;
· in Great Britain it is typically the driver
of the vehicle who is liable for payment of any fine and would
be awarded any penalty points applicable where a road traffic
offence occurs;
· for example, if a speed camera detects
a vehicle breaking the speed limit, the enforcing authority would
request registered keeper details from the Driver and Vehicle
Licencing Agency (DVLA) and issue a notice under the Section 172
of the Road Traffic Act 1988 requiring the keeper to name the
driver of the vehicle at the time the offence was committed;
· if the keeper was not the driver, the
keeper is required to respond naming the driver and pass on appropriate
contact details;
· if the keeper fails to name the driver,
penalty points and fines can be imposed on keepers;
· the situation in Northern Ireland is the
same, with the driver of the vehicle being liable for any fine
or penalty points and being similarly required to name the driver
of the vehicle at the time of the offence;
· the Road Traffic Act 1988 does not currently
allow for prosecution of registered keepers for the offences listed
in the proposed Directive, only the person driving the vehicle
at the time of the offence;
· if a Section 172 notice is served outside
the UK there are currently no sanctions in the Road Traffic Act
for failing to comply with the notice as the offence of non-compliance
does not apply outside the UK;
· the draft Directive contains no provisions
on the actions to be taken or possible sanctions where a person
fails to respond to an information letter, requesting details
of the driver, which is sent in accordance with the Directive;
· this is particularly a concern for speeding
offences which are detected after the fact by a camera —
offences such as drink driving and using a mobile phone whilst
driving are generally handled by the police at the time of witnessing
the offence and so the police can effectively establish who the
driver was and appropriate enforcement activity can be undertaken;
· however, as some Member States allow offenders
to pay more substantial fines some days or weeks after the event,
they could conceivably return to their own countries and ignore
subsequent requests to settle outstanding monies;
· text within Article 4 of the proposal
would request registered keepers to name drivers where the Member
State so requests but no further action could be taken; and
· the Government therefore considers that
the text of the proposed Directive should be amended in this respect
and is currently considering how this might work.
7.25 In relation to transfer of court cases for unpaid
penalties the Minister says that:
· the Framework Decision on the Mutual Recognition
of Financial Penalties, 2005/214/JHA, would allow for collection
of fines to be transferred between Member States in the event
of non-payment;
· the proposed Directive, by facilitating
the sharing of registered keeper data, would make it easier to
track down those eligible for a fine having committed road traffic
offences abroad and more cases could be transferred for non-payment;
· officials from the French Ministry of
the Interior have said that around 500,000 UK drivers commit traffic
offences in France every year and in the event of non-payment,
some of these cases could be transferred to UK courts to handle;
· subject to establishing the position regarding
enforcement (including whether the UK would need to enforce a
fine that a registered driver had received or a disqualification
from driving in another Member State), this would potentially
place significant burden on the courts to handle and the police
to pursue;
· UK drivers also drive in large numbers
in Spain, Portugal, the Benelux countries and Germany;
· the Framework Decision allows Member States
to keep financial penalties once a case has been transferred;
· so if a UK driver were caught speeding
abroad, should that case transfer to the UK courts, the fine collected
would be retained by the UK; and
· many Member States impose fines of a broadly
similar amount for the road traffic offences listed in the draft
Directive.
7.26 Turning to data protection the Minister tells
us that:
· other Member States have signalled their
intent to scrutinise the change in the reference to the rules
on data protection and the Government will monitor developments
in this respect;
· it may not eventually make a material
difference to the UK, but it may not necessarily follow from the
change of legal base that the Framework Decision should not apply;
· data shared under the proposed Directive
would have to be in line with its stated purposes, that is the
exchange of information and enforcement action in the context
of road traffic offences;
· Directive 95/46/EC is likely to be superseded
by a General Data Protection Regulation (GDPR) and the Data Protection
Framework Decision by a new Directive;
· there is a political commitment that negotiations
on the GDPR will be concluded and a final agreement reached in
2015, although there a number of complex technical and legal issues
as well as important points of principle that still need to be
resolved to achieve this deadline;
· whilst the Government knows what is anticipated
in broad terms within this proposed Regulation, the specifics
are still being decided upon and there is a possibility that it
will be agreed before the draft Directive, which may have some
later repercussions; and
· the Government will examine fully the
ramifications as negotiations continue.
7.27 Noting that the Home Secretary set out the Government's
position with regard to Prüm to the House on 10 July, the
Minister says that:
· these Decisions will not apply to the
UK after 1 December;
· while the Government does not consider
that operating the mechanisms set out in the draft Directive would
require the UK to implement the vehicle registration provisions
of Prüm, it is assessing whether the current draft makes
this sufficiently clear; and
· if not, during negotiations, it will seek
changes to clarify the position.
7.28 In regard to implementation costs the Minister
says that:
· the original 2008 impact assessment, which
the Commission considers remains in force, estimated the following
costs;
· for the (then) EU27, these were €5
million-€10 million (£3.99 million-£7.96 million)
to establish the information exchange system, as a one-off investment,
and annual costs of €5 million-€6.5 million (£3.98
million-£5.17 million) for the additional enforcement effort
involved; and
· this was based on setup costs for each
Member State estimated at €0.2 million-€0.3 million
(£0.16 million-£0.24 million) in addition to central
EU costs.
7.29 The Minister continues that:
· the Department for Transport's appraisal
guidance recommends an optimism bias adjustment of 200% for IT
projects;
· on that basis, the Government estimated
that the cost would have been between £0.48 million and £0.72
million;
· however, it 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);
· in 2008 the Government estimated that
the total annual enforcement cost for pursuing non-resident offenders
for offences in the UK arising indirectly from the Directive could
be approximately £5.7 million, assuming the UK elected to
exercise this option;
· where UK-registered vehicles were detected
committing speeding, red light, drink drive or seat belt offences
in other Member States, there would be costs for the UK vehicle
registration authorities, that is the DVLA, in providing information
to those Member States — the cost per year was estimated
as £40,000; and
· there may be additional costs, not directly
related to this iteration of the Directive, if an increase in
the number of cross-border road traffic offenders being caught
leads to an increase on the number of cases transferred to and
from the UK for enforcement of unpaid fines under the Framework
Decision on the Mutual Recognition of Financial Penalties.
7.30 On benefits the Minister says that:
· in 2008 the Commission has estimated the
proposal would save around 88 deaths per year across the EU;
· any benefits would probably be greater
in Member States with a higher proportion of transit traffic and
non-resident offenders than the UK;
· in Great Britain in 2006, there were three
deaths, seven serious casualties and 50 slight casualties in accidents
where speed or red light offences by foreign registered vehicles
were recorded as a contributory factor;
· in addition, there were one fatality,
eight serious casualties and 54 slight injuries in Northern Ireland
involving foreign registered drivers where excessive speed was
recorded as a contributory factor, though not all would have involved
illegal speeds;
· Great Britain and Northern Ireland data
include all foreign registered vehicles or drivers, though it
is likely that most are from Member States as most vehicles entering
the UK are likely to come from such countries, including those
nearest to the UK;
· there may have been more cases where it
is not known whether speed or red light offences by foreign registered
vehicles were involved;
· on the other hand, the proposals in the
Directive are unlikely to prevent all such accidents;
· so these figures may provide a reasonable
assumption for the upper limit of possible casualty savings in
the UK arising from this proposal;
· there may 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;
and
· based on the casualty figures set out
above 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.
7.31 The Minister makes four further comments:
· the sole provision for a Delegated Act
power, which is linked to the provisions of Annex 1 to the Directive,
may be of concern to the Government — it will keep this
under review and if necessary will seek to clarify its scope in
negotiations;
· the Government will engage actively with
the Commission ahead of the preparation of its planned 2016 report
on the Directive and will ensure that the Commission is aware
of UK considerations when it gathers evidence which may affect
its plans for future proposals;
· any future proposals for mandating criminal
sanctions (for example harmonisation of penalty points) following
the recommendations of the 2016 report would require an Article
83 TFEU legal basis (and would potentially trigger the JHA opt-in)
as it would be inappropriate to use a transport legal basis in
this instance — the Government will therefore monitor this
carefully; and
· in the light of the ECJ judgment, the
Government will not be asserting the JHA opt-in in relation to
this proposal.
7.32 Finally, the Minister tells us about the timetable
for Council consideration of the draft Directive, saying that
it is not yet known when Ministers will deal with the proposal,
following working group meetings on 24 July and 4, 11, 23 and
25 September, but noting that it is likely that the proposal will
be taken forward quickly, because of the deadline set by the ECJ
for replacement of the annulled Directive by May 2015.
7.33 However, in his letter of 8 September the Minister
updates us on the Council timetable, saying that:
· since his earlier communication the Italian
Presidency has given strong indications that it would like to
take this dossier to the 8 October Transport Council for a general
approach;
· although the Government is conscious of
the tight timetable in which this proposal must be finalised,
including the need to reach a deal with the European Parliament
and bring the proposal back to Council for final adoption, it
has asked the Presidency and the Commission for more time to fully
consider the text;
· the Government has explained that the
timing of Conference Recess means that it is very unlikely that
it will be able to complete its domestic processes, including
parliamentary scrutiny, before the October Council.
7.34 Reminding us that since submission of his Explanatory
Memorandum, there has been a single working group meeting on 4
September to discuss the text (with three more planned for 11,
23 and 25 September' the Minister reports that in initial discussion
the Government has gained broad support from other Member States
and from the Commission for the UK in terms of transposition times.
He explains that:
· as originally proposed, the Directive
would require Member States to transpose by 6 May 2015 in line
with the decision of the ECJ annulling the previous Directive;
· as this is effectively a new text for
the UK (together with Denmark and Ireland), the Government has
requested the same two-year transposition period afforded to other
Member States in the annulled Directive;
· 25 of the 28 Member States were required
to transpose the original Directive by November 2013 and many
of these Member States are therefore reluctant to support anything
more than minor changes to the text;
· this affords the UK, Ireland and Denmark
little opportunity to suggest amendments at this time; but
· even those Member States which are averse
to changes to the current text spoke in support of additional
time for the UK, Ireland and Denmark to transpose the Directive.
7.35 The Minister continues that:
· although there is clearly limited appetite
to amend the current proposal, by 7 November 2016 the Commission
will be required under the terms of the Directive to produce a
report on the effectiveness of the Directive to date and to produce
evidence supporting improvements to it, such as allowing for the
transfer of fines by harmonisation with the Framework on the Mutual
Recognition of Financial Penalties or harmonisation of penalty
point regimes;
· the Commission have urged the UK to consider
using this report as a vehicle by which changes to the Directive
could be effected;
· the Government is already considering
what amendments the UK would like to see with regard the text,
particularly in light of the limited room to negotiate at the
moment; and
· the Commission has indicated that it would
have no concerns, in principle, with the UK potentially amending
domestic legislation to enhance measures for dealing with non-compliance
where drivers and registered keepers fail to respond to the cross-border
notices outlined in Annex II of the text, that is dealing with
the present unenforceability of a Section 172 notice outside the
UK.
7.36 The Minister also tells us that:
· the working group discussion on 4 September
suggests that there is only one sticking point with regard to
the text and that concerns the change of the underlying principles
of data protection from the Prüm Framework to the Data Protection
Directive;
· the Government is still considering its
position on data protection; and
· Member States are divided on whether or
not the change to the text should remain.
7.37 Finally, the Minister comments that:
· it will be necessary to reach cross-Whitehall
agreement on the Government's policy position ahead of any general
approach;
· as such at present he is unable to confirm
the Government's voting intentions until the cross-Whitehall process
is complete; and
· the Government will continue to seek deferral
of Ministerial decisions to a later Council meeting in the remaining
working group negotiations, keeping us updated as to any developments.
Previous Committee Reports
None.
20 EUCARIS - the European Car and Driving Licence Information
System - a portal designed to facilitate communication between
driver and vehicle databases. Back
| 
