Explanatory Memorandum to COM(2023)128 - Union-wide effect of certain driving disqualifications - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2023)128 - Union-wide effect of certain driving disqualifications. |
|---|---|
| source | COM(2023)128  |
| date | 01-03-2023 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
Improving road safety is a prime objective of the Union's transport policy. The Union is pursuing a policy to improve road safety with the objective of reducing fatalities, injuries and material damage.
Over the last 20 years, EU roads have become significantly safer. The number of road fatalities has gone down by 61.5% from around 51,400 in 2001 to around 19,800 in 2021. Nevertheless, the improvement in road safety has not been strong enough to meet the EU’s political ambition to decrease the number of road deaths by 50% between 2001 and 2010, and by additional 50% between 2011 and 2020 (i.e. by 75% between 2001 and 2020) stemming from a number of strategic documents issued by the Commission over the last two decades, such as the White Paper on European Transport Policy for 2010 1 , or the Communication from the Commission on Towards a European road safety area: policy orientations on road safety 2011-2020 2 . In its Sustainable and Smart Mobility Strategy 3 of 2020, the Commission committed to target zero fatalities in all modes of transport by 2050.
While the number of road fatalities in 2020 was 17% lower than in 2019, this was heavily influenced by an unprecedented drop in road traffic volumes in the wake of the COVID-19 pandemic 4 . In the years before 2020, there was hardly any drop in the number of road fatalities. This slowdown, that already appeared around 2014, prompted the Transport Ministers of the Member States of the Union to issue a ministerial declaration on road safety at the informal transport Council in Valletta in March 2017 5 . In that declaration, the Member States called upon the Commission to explore the strengthening of the Union’s road safety legal framework to reverse that stagnating trend.
The Valletta Declaration 6 explicitly called for action on the issue of mutual recognition of driving disqualifications concerning non-resident drivers:
“The transport ministers call upon the Commission to: (…) explore the strengthening of the Union's road safety legal framework with a particular focus on Member States' cooperation on the mutual recognition of the driving disqualifications of non-resident drivers, without prejudice to the appropriate legal base(s) for such proposals (…).”
In that context, an important element of the Union’s efforts to improve road safety is the consistent enforcement of sanctions for road traffic offences committed in the Union. However, under the current legal framework, the sanction of driving disqualification cannot be granted a Union-wide effect where the offence is committed in a Member State other than the one which issued the driving licence.
Because the issuance of a driving licence is a sovereign act, such document cannot be withdrawn with the same effect by another Member State. Therefore, only the Member State that issued the driving license can withdraw it with a Union-wide effect. Other Member States may only restrict the right to drive as regards their respective territory, in line with the territoriality principle 7 . It is therefore imperative for a Union-wide effect of driving disqualifications and to prevent the relative impunity of road traffic offenders that a Union framework is established.
Which authorities can adopt decisions imposing driving disqualifications varies between Member States. Therefore, the imposition of the Union-wide driving disqualification should be established on the basis of national law of the Member State that has issued the driving licence. Under the proposal, Member States will be obliged to provide an auxiliary Union-wide effect, in accordance with their own national legislation, to a driving disqualification that was imposed by another Member State.
The framework should be based on the principle that effects pertaining to the withdrawal, suspension or restriction of a driving licence should to the furthest possible extent be applied in the whole Union, thus establishing Union-wide disqualification. Such a framework enables the EU to reach similar results as if the decisions leading to driving disqualifications were mutually recognized, while also catering the specificities of road transport and ensuring that there is no overlap between the Union-wide effect of driving disqualifications and the instruments used in the field of criminal cooperation.
The scope of this initiative covers those road traffic offences that most contribute to road traffic accidents and fatalities, namely: excessive speeding; drink-driving; driving under the influence of drugs and causing death or serious bodily injury as a result of any road safety related traffic offence.
Speed not only has a direct influence on collision occurrence and the severity of collisions, but speeding is actually by far the most recorded road traffic offence on average 8 . The number of collisions and the severity of those collisions increase exponentially as driving speed increases. Likewise, reducing speed by only a few km/h can significantly reduce the number and severity of collisions 9 .
The share of speeding offences committed by non-resident drivers can differ greatly across Member States. On average, around 18% of all speeding offences are committed by non-resident drivers. This means that there is a material group of drivers who commit serious traffic offences in other Member States but are not (fully) held accountable for them. Speed enforcement aims to deter drivers from exceeding speed limits by penalising those that do. This not only affects the speed of drivers who feel typified by those that actually get sanctioned (specific deterrence), but also those who see or hear that drivers keep being penalised (general deterrence) 10 .
By partially removing the existing impunity of these offenders through allowing Member States to mutually recognize driving disqualifications stemming from speeding, it is expected that their driving speed will lessen, as they will feel the need to comply with speed regulations abroad to the same extent they do in their own Member State. In fact, especially considering that speeding is the most committed road traffic offence, the mutual recognition of driving disqualifications stemming from its commission is expected to have a significant effect on road safety alone, as for example certain stakeholders estimate that 2,100 lives could be saved each year if the average speed dropped by only 1 km/h on all roads across the EU 11 .
The same logic applies to drink driving. The number of drink driving offences is estimated at 1.2 million in 2019 and it is projected to increase to 1.5 million by 2030 and 2.4 million by 2050, drawing on the development of enforcement intensity over the period 2010-2019 12 . A recent study carried out in the context of the DRUID (Driving under the Influence of Drugs, Alcohol and Medicines) project was used to estimate the share of offences in which the tested blood alcohol concentration (BAC) was higher than 0.8 13 . At EU level, some 26% of all alcohol offences were estimated to be severe, with a possible loss of licence as a consequence. In addition, it has been estimated that non-resident drivers commit around 15% of all traffic offences 14 .
Similarly, drugs can affect mental and physiological functions, causing impairment. In fact based on epidemiological studies of road fatalities at national level it is estimated that the share of road fatalities with involvement of drugs (including medicines) is 15-25% 15 . According to another report of the DRUID project 16 , the primary general deterrent factor concerning drug-driving is the perceived risk of detection, however, a survey carried out in 2018 showed that only 14% of the general driving population believe it likely that they are going to be checked for the use of illegal drugs 17 . The visibility of enforcement of offences related to driving while influenced by drugs should therefore be raised. On that consideration, and concerning the link between drugs and alcohol (commonly referred together as “driving under the influence” or “DUI”), it is necessary to include the offence of driving under the influence of drugs in the proposed Directive.
Apart from offences related to speeding and driving under the influence, other conducts that infringe road traffic regulations, can also lead to serious bodily injury or even fatalities, in particular of vulnerable road users such as children, pedestrians, cyclists, and people on (electric) scooters and those whose mobility is reduced. On those considerations, the proposed Directive provides for the extension of the effect of driving disqualifications arising from those conducts to the EU as a whole.
The evaluation of Directive 2006/126/EC 18 concluded that the absence of a specific and efficient EU framework for driving disqualifications poses challenges when it comes to preventing abuses by drivers that commit offences on the territory of one Member State but then can continue to drive in another Member State without bearing consequences of the offences. This was corroborated by the views of 16 out of 21 respondents representing national authorities who saw the fact that residents and non-residents of the Member State where the offence was committed do not face the same consequences regarding driving disqualification, as a generally important problem. When asked about the absence of a Union-wide driving disqualification provided through the means of mutual recognition of decisions, some Member States confirmed that it renders difficult the enforcement of disqualification across borders and hence poses a risk to road safety in the EU, especially in cases where the banning from driving resulted from serious offences (e.g. driving under the influence of alcohol). The targeted survey with national authorities carried out in the context of the evaluation broadly confirmed that there may be a negative impact on road safety and driving licence tourism resulting from the absence of an EU framework for driving disqualifications though its impact would be difficult to assess.
When this Explanatory Memorandum refers to the mutual recognition of driving disqualifications in the context of the preparatory work, it should be read as the policy objective to provide for a Union-wide effect of driving disqualifications, as that was always the original purpose of the initiative.
Moreover, providing for a Union-wide effect of driving disqualification through the means of mutual recognition of decisions, has also been examined in the context of the preparatory work for Directive 2015/413 19 .
In the preparatory work of the revision of Directive 2006/126/EC the large majority of respondents to the Open Public Consultation (OPC) (68%, 5,146 out of 7,532) stated that it is either very important or important that the scope of that Directive is expanded to include rules on the mutual recognition of driving disqualification. Most stakeholders 20 supported during the workshop and the targeted interviews to develop the concept of the mutual recognition of driving disqualifications. However, the Netherlands mentioned some legal concerns 21 , while Germany had some concerns at least in the initial phase.
Overall, many stakeholders were supportive of the Union-wide driving disqualification provided through the means of mutual recognition of decisions, especially when it comes to offenses related to speeding and drink- driving. This was confirmed in the OPC, where about 6,106 (81%) and 4,966 (66%) out of 7,532 respondents, considered a Union-wide driving disqualification provided through the means of mutual recognition of decisions resulting from driving under the influence of alcohol or of drugs and from speeding as either very important or important for the revision of Directive 2006/126/EC respectively. In particular, when asked which offences should be provided such an effect in the EU, 87% of respondents to the OPC (6,586 out of 7,532) chose driving under the influence of alcohol and drugs and 46% (3,470 out of 7,532) selected speeding. In the targeted interviews, some stakeholders 22 expressed support for providing a Union-wide driving disqualification through the means of mutual recognition of decisions resulting from speeding, drink- driving. Sweden, Slovenia and Belgium were also supportive, despite acknowledging the difficulties in finding an agreement with other Member States and with the actual implementation.
The absence of a clear EU framework for a Union-wide driving disqualification provided through the means of mutual recognition of decisions poses challenges when it comes to preventing abuse by drivers and impacts road safety. This finding was also corroborated by Member States during the targeted interviews. Reducing both dangerous behaviours by drivers and the number of unlicensed drivers seem to be relevant factors for stakeholders that responded to the OPC. In effect, about 55% (5,063 out of 7,532) and 69% (5,201 out of 7,532) of them, respectively, rated them as either extremely or very important.
In the targeted survey, a large majority of representatives from national authorities identified the fact that residents and non-residents of the Member State where the offence was committed do not face the same consequences regarding driving disqualification in the EU as a generally important problem (16/21). In the targeted survey, respondents from non-governmental organisations agreed that residents and non-residents not facing the same consequences regarding driving disqualification is an important problem in relation to road safety (64%). Similarly, they agreed that residents and non-residents not facing the same consequences regarding penalty/demerit points is an important problem in relation to road safety (64%).
National authorities estimated that, on average, the number of offences resulting in driving disqualifications committed per year is in the range of 25,000 to above 50,000. The number of driving disqualifications for resident drivers (e.g. driving licence is issued in the same Member State that imposes the disqualification) was estimated in the range of 0 to 5,000. The number of driving disqualifications for non-resident drivers (e.g. driving licence is not issued in the Member State that imposes the disqualification) was estimated in the range of 0 to 5,000. More respondents estimated the number of offences resulting in penalty/demerit points committed per year in the range of 0 to 1,000. Slightly more respondents estimated the number of offences resulting in penalty/demerit points for resident drivers (e.g. driving licence is issued in the same Member State that imposes the penalty/demerit point) in the range of 0 to 1,000. The number of offences resulting in penalty/demerit points for drivers resident in another EU Member State (e.g. driving licence is not issued in the Member State that imposes the disqualification) was estimated in the range of 0 to 5,000.
In light of the preparatory work, it is confirmed that establishing a specific and efficient system for the provision of Union-wide effects of driving disqualifications is likely to have a significant effect on road safety. Furthermore, this proposal forms part of a package that concerns the revision of two other related directives:
·Directive (EU) 2015/413 facilitating cross-border exchange of information on road-safety-related traffic offences 23 and
·Directive 2006/126/EC on driving licences 24 .
Directive (EU) 2015/413 is one of the cornerstones of the enforcement of certain well-defined road traffic offences, where such offences were committed with a vehicle registered in another Member State than where the offence was committed, which in most cases also indicates commission by a non-resident offender. It was therefore important to align the scope of this proposal to the offences of that initiative as much as possible. Otherwise, enforcement authorities might not have sufficient tools to actually conduct the investigation that would end in a driving disqualification. Moreover, non-resident offenders might not enjoy the same level of procedural safeguards as their resident counterparts, which the revision of that directive aims to better guarantee. During the preparatory works for this proposal, it became clear that, while the applicable thresholds that lead to driving disqualifications differ significantly between Member States, certain road safety related traffic offences trigger driving disqualifications in all or most Member States.
• Consistency with existing policy provisions in the policy area.
Providing for a system of Union-wide effect of the driving disqualification of non-resident offenders has continuously been a focal point of the initiative to revise Directive 2006/126/EC 25 .
Article 11 i of that Directive governs certain elements of driving disqualifications. The revision of Directive 2006/126/EC, carried out in parallel to this initiative for reasons of legal consistency and coherence, will cover the issuance of driving licences to drivers who have been disqualified and the exemptions of the mutual recognition of (the validity of) driving licences when the holder is subject to a disqualification in a Member State other than the one that issued the driving licence. Moreover, it will contain provisions facilitating the enforcement of partial driving disqualifications through the possibility of endorsements.
Proposing a specific legal act to provide a Union-wide effect of driving disqualification through the means of mutual recognition of decisions has also been a recurring aim of the Commission. In 2006, the Commission indicated in a Communication on disqualifications arising from criminal convictions 26 that it was considering to propose a legal act to replace the 1998 Convention concerning driving disqualifications 27 . As regards the mutual recognition of disqualifications in general, the Commission declared as part of that Communication that it favoured a sectoral approach, in sectors where a common basis exists between the Member States (such as driving disqualifications).
• Consistency with other Union policies
The proposal is also fully consistent with the main acquis on road safety.
It has no significant bearing on Directive (EU) 2022/2561 of the European Parliament and of the Council 28 and on Regulation (EU) 2019/2144 of the European Parliament and of the Council 29 . It is also consistent with the EU Road Safety Policy Framework 2021-2030 - Next steps towards 'Vision Zero' 30 .
As mentioned above, Directive (EU) 2015/413 is being revised in parallel to this proposal, for reasons of legal consistency and coherence. In that regard it should be reiterated that Directive (EU) 2015/413 is expected to become the cornerstone of the investigation, and thus indirectly also contribute to the enforcement in particular in cases where the offender has been detected remotely. As the revised Directive (EU) 2015/413 aims to expand the information exchange and mutual assistance between the Member States, an assumption can be made that the number of successfully investigated offences, and as a result also the imposed driving disqualifications, will substantially increase.
Similarly, the revision of Directive (EU) 2015/413 aims to grant a higher level of procedural and fundamental rights protection to the pursued or caught non-resident offenders, regardless of whether the offence is remotely detected or the offender is apprehended before leaving the Member State in which the offence was committed.
The revision of Directive 2006/126/EC and the Union’s driving licence framework will also complement the rules laid down by the proposed Directive as mentioned above. Moreover, the revised driving licence Directive will help in the practical enforcement of partial restrictions placed on the driver and reinforce the possibility for the Member State of the offence not to recognize the validity of the driving licence of the offender in the cases where the proposed Directive is not applicable.
In addition, rules on the protection of personal data also apply to the exchange of information related to driving licences, in particular:
·Regulation (EU) 2016/679 of the European Parliament and the Council (General Data Protection Regulation) 31 ; and
·Directive (EU) 2016/680 of the European Parliament and of the Council 32 .
The proposal is also consistent with other instruments allowing the mutual recognition of judgements or judicial decisions in criminal matters. It fills a gap with regard to driving disqualifications deriving from judicial decisions in criminal matters. In order to avoid possible overlaps between the proposed Directive and the Justice and Home Affairs acquis of the Union, it is clarified that the proposal is without prejudice to those instruments.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The primary objective of the proposal is to improve road safety and to ensure a high level of protection for all road users in the Union, which was also highlighted in the call of the EU Transport Ministers in the Valletta Declaration.
According to the case law of the Court of Justice of the European Union (CJEU), the Union legislator enjoys wide legislative powers as regards the adoption of appropriate common rules to establish a common transport policy 33 . Improving road safety is a prime objective of the Union’s transport policy. Measures pursuing that objective may therefore be adopted on the basis of Article 91(1)(c) Treaty on the Functioning of the European Union (TFEU) 34 .
Therefore, the appropriate legal basis for the proposed Directive is Article 91(1)(c) of the TFEU.
• Choice of the instrument
Article 91(1)(c) TFEU gives the EU legislator the possibility to adopt both regulations and directives.
For this proposal, a directive is the most appropriate form of instrument to be used, as to cater to the differences in the applicable rules on the imposition and enforcement of driving disqualifications within Member States.
• Subsidiarity (for non-exclusive competence)
Under Article 5(3) TEU, the Union shall only act if the proposed action cannot be sufficiently achieved by the Member States. Under the current legislative framework, resident drivers who commit even the most reprehensible road traffic offences retain their right to drive in all Member States other than the Member State where the offence was committed, even if that Member State restricts such rights. The only situation where a driving disqualification has Union-wide effect is where the Member State that applies the driving disqualification was the one that issued the driving licence to the offender.
For reasons of road safety, it is of utmost importance that a Union-wide effect be given to driving disqualifications within the European Union. This can only be achieved through an EU legal instrument. The decision to issue a driving licence or to deprive a person of their right by disposing the validity of that licence forms part of a Member State’s sovereignty. As such, the Union-wide effects of a driving disqualification will always be dependent on the actions of the Member State that issued the driving licence, who does not have the necessary information, legal instruments or incentive to act without Union intervention.
• Proportionality
The measures of this initiative do not go beyond what is necessary to achieve the objective of improving road safety through giving a Union-wide effect to driving disqualifications resulting from the commission of certain road safety related offences. The Directive provides for the transmission of the driving disqualification to the Member State that issued the driving licence only as regards those major road-safety-related traffic offences, which constitute the main causes of road traffic accidents and fatalities within the EU, namely the offences of drink-driving (driving with a blood alcohol level that surpasses the maximum value allowed by the law) and speeding (exceeding the speed limits in force for the road or type of vehicle concerned), as well as the offence of driving under the influence of drugs. The driving disqualification can also be transmitted if it relates to a traffic offence which has caused death or serious bodily injury.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
In 2012, a legal study 35 was carried out by the Commission as its principal, on the state-of-play of intra-EU disqualifications of three predefined areas, including driving disqualifications. The study analysed not only the relevant EU legal framework, but also the existing multinational and bilateral treaties and conventions. The study, inter alia, concluded that a new Directive should be adopted, to regulate the cross-border enforcement of driving disqualifications.
In 2022, the Commission has contracted a consortium composed of the companies Ecorys, Wavestone and Grimaldi to support 36 the Impact Assessment in the revision of Directive (EU) 2015/413. As part of that study, an extensive research was carried out on the regulatory framework and CJEU jurisprudence concerning driving disqualifications. The conclusion of that research also supported the creation of a new legal act to provide a Union-wide effect of driving disqualifications through the means of mutual recognition of such decisions.
As mentioned above, the situation in which a Member State suspends, pursuant to its national legislation and on account of unlawful conduct in its territory, the right to drive of the holder of a driving licence issued by another Member State is at present partially governed by Directive 2006/126/EC.
The European Commission has published in 2022 an ex-post evaluation 37 of that Directive. It demonstrated that the combined action of Directive 2006/126/EC and its two predecessors on driving licences resulted in a common safety level for road users within the Union and has facilitated free movement. It also showed that there is scope for further enhancing the level of road safety within the Union as well as the efficiency and proportionality of some of the regulatory requirements.
• Stakeholder consultations
In line with the Better Regulation Guidelines 38 during the ex-post evaluation of Directive 2006/126/EC and the impact assessment on the revision of that directive, stakeholder consultations were carried out also with regard to this proposal.
During the preparatory phase of the ex-post evaluation, a stakeholder workshop was conducted on 16 October 2020, for the purpose of gathering evidence, confirming identified findings, seeking feedback on emerging findings and collecting views.
An open public consultation was then held between 28 October 2020 and 20 January 2021, allowing the interested public and stakeholders to express their views on the rules in force.
During the preparatory phase of the impact assessment, interested parties had the possibility to provide feedback on the Inception Impact Assessment (Q2 2021). Subsequently, the following targeted consultation activities were carried out:
-Two rounds of interviews:
·Exploratory interviews during the inception phase (Q1 and Q2 2022)
·In-depth interviews to plug information gaps and assess the expected impacts of policy measures (Q2 and Q3 2021).
-Two rounds of surveys:
·A survey to substantiate the problem analysis (Q2 2022).
·A survey to assess the impact of policy measures (Q2 and Q3 2022).
Finally, a new open public consultation took place in Q3 2022.
The European Parliament is in favour of a strengthening of the road safety framework notably by introducing an instrument for the mutual recognition of driving disqualifications 39 .
• Collection and use of expertise
During the impact assessment phase, an expert workshop on the consequences of road traffic offences and medical fitness (Q2 2022) took place.
During the preparatory phases of both the ex-post evaluation phase and the impact assessment, the committee on driving licences established under Article 9 of Directive 2006/126/EC, composed essentially by Member States experts, was constantly informed and consulted.
• Impact assessment
An impact assessment has been carried out 40 on the revision of Directive 2006/126/EC, including elements on driving disqualifications. The impact assessment was approved by written procedure and received a positive opinion without comments by the Regulatory Scrutiny Board on 18 November 2022 41 . Furthermore, the preparatory work on the revision of Directive (EU) 2015/413 has also substantially dealt with the matter of providing a Union-wide effect of driving disqualification through the means of mutual recognition of decisions. The outcome of the research work confirmed that driving disqualification should be included in the revision of Directive 2006/126/EC, especially as it would not fall within the scope of Directive (EU) 2015/413. Nevertheless, while developing the policy options, the Commission has made use of the information gathered during the evaluation and assessment phase for both Directives 42 .
The final report of the support study for the impact assessment for the initiative to revise Directive 2006/126/EC which also covers this proposal, includes a comprehensive description and assessment of the initiative’s added value and its links with other policy initiatives. These can be found in Sections 3.3 and 1.3 and 1.5 of that report. A detailed description of the policy options is included in Section 5.2 and 8.1, while a comprehensive analysis of the impacts of all options is presented in Section 6. The summary of examined policy options can be consulted in the Explanatory Memorandum accompanying the proposal on the revision of Directive 2006/126/EC 43 . An EU framework for uniform cross-border enforcement of driving disqualifications was proposed in the Convention on driving disqualifications of 1998 (Council Act of 17 June 1998) 44 , which did not enter into force due to lack of ratifications by Member States (only seven Member States ratified it 45 ). For this reason, it was repealed in 2016. 46
A step towards providing a Union-wide effect of driving disqualifications seems to have been taken with the adoption of Directive 2006/126/EC, where the relevant provisions of the previous Directive on driving licences (Article 8 of Directive 91/439/EEC) 47 were partially amended, in order to mitigate the phenomenon of “driving licence tourism”. However, the wording of the new provision, Article 11 i of Directive 2006/126/EC, did not provide the necessary clarity. The provision in question, has been interpreted by the CJEU 48 on several occasions, due to doubts stemming from its wording and to the different situations applying for the disqualifications imposed on residents and non-residents. Furthermore, as also stressed by the CJEU 49 , such an obligation is not effective and enforceable until a system for the exchange of information on disqualifications between Member States is implemented, enabling all Member States to actually verify if a disqualification imposed abroad is pending or has been imposed on a driving licence applicant.
As a result of the problems described above, under the current framework non-resident offenders are only disqualified from driving in the country where they have committed an offence but can still drive in all other EU Member States, except when the disqualification is imposed by their Member State of issuance. This is a major issue, if one considers the serious risk on road safety of drivers circulating within the EU who have their driving licence suspended, restricted or withdrawn in one of the Member States for serious and reiterate breaches to road traffic rules.
All the more, outside an express ban to this effect (or when other Member States are not duly informed of a pending ban) the non-resident driver will be able to apply for a new licence in his country of residence, to recover the right to drive everywhere, as the new permit is to be recognised, in principle, even in the country of offence. The same might be done by a driver disqualified in his own country, by changing his residence before applying for a new permit.
The legal basis for an EU-wide exchange of information on driving disqualifications is indeed already enshrined in Directive 2006/126/EC 50 , which expressly requires that Member States assist one another in the implementation of its measures and exchange information on the licences they have issued, exchanged, replaced, renewed or revoked, by using the EU driving licence network set up for these purposes (i.e. RESPER). In addition, Directive (EU) 2015/413 could also facilitate enforcement by requiring the Member State in the territory of which the offence was committed to inform the offender about any disqualification that accompany the offence allegedly committed.
Contents
- Assessment of measures and policy options
- Article 1: Objective and subject-matter
- Article 2: Definitions
- Article 3: Union-wide effect of driving disqualifications
- Article 4: Duty to notify a driving disqualification
- Article 5: Standard certificate and means of transmission
- Article 6: Ensuring the Union-wide effect of driving disqualifications
- Article 7: Effects of driving disqualifications in the Member State of the offence
- Article 8: Grounds for exemption
- Article 9: Time-limits
- Article 10: Consultations between the Member States
- Article 11: Information to be given by the Member State of issuance
- Article 12: Information to be given by the Member State of the offence
- Article 13: Obligation to inform the person concerned
- Article 14: Legal remedies
- Article 15: National contact points
- Article 16: Statistics
- Article 17: Committee procedure
- Article 18: Relationship with other legal acts
- Article 19: Transposition
- Article 20: Report on the application
- Article 21: Entry into force and application
- Article 22: Addressees
The measures under the different policy options have been subject to a quantitative and qualitative assessment of economic, social (road safety) and fundamental rights impacts. The 2025-2050 time horizon has been selected for assessing the impacts, in line with the baseline projections. Regarding fundamental rights, the effects will remain controlled by a strict implementation of rules on data protection, notably in RESPER.
The economic and social impact of the preferred option in relation to providing a Union-wide effect of driving disqualifications is expected to be overall positive and the initiative should raise road safety across Member States. Increasing the likelihood of an efficient execution of a driving disqualification issued in a cross-border context also increases the deterrent effect on committing a road safety crime regardless of Member States borders. The social impact would be overall very positive as victims can be ensured that measures linked to road traffic offences committed by a foreigner will not be left unexecuted.
The goals of the initiative will lead to a limited increase in the operational costs of RESPER. However, this should be more than offset by the benefits from saving human lives due to increased road safety.
Businesses, SMEs and micro-enterprises are not expected to be directly affected by this legislative proposal.
• Fundamental rights
Providing an EU-wide effect of driving disqualification measures may interfere with fundamental rights protected by the EU Charter of Fundamental Rights 51 (the Charter) and the European Convention on Human Rights 52 (ECHR).
The decision of the Member State of issuance to provide a Union-wide effect of driving disqualifications will further limit the possibility of the offender to drive a power-driven vehicle in the Union. Depending on his or her personal situation, this may affect the exercise of his professional activity, his family life, and the possibilities to make use of his or her motor vehicles. The proposal may therefore affect several fundamental rights; the right to engage in work or the freedom to conduct a business, the right to family life, the right to property. Moreover, the envisioned procedures might also impact a person’s right to a fair trial, his or her right of defence and his or her right to the protection of personal data concerning him or her.
Limitations of an offender’s fundamental rights may be made if they are necessary and genuinely meet objectives of general interest recognised by the Union. This is the case here where the objective of general interest recognised by the Union, is the improvement of road safety. The limitations do not go beyond what is necessary to achieve this objective: A driver who has committed such road traffic offenses in a Member State other than where his driving licence was issued, while benefitting from free movement, should face the same consequences when his driving licence is disqualified, as a driver from that Member State where the offense was committed. They should lose their driving licence or right to drive in the whole Union. Otherwise, road safety could only be protected in the Member State of the offense, which would constitute a partial and inefficient outcome.
Moreover, some important safeguards are included in the proposed Directive. The proposal provides for grounds for exemptions, where there are substantial grounds to believe, on the basis of specific and objective evidence, that the execution of the driving disqualification would, in the particular circumstances of the case, entail a breach of a fundamental right set out in the Charter. Another ground for exemption applies where the procedural safeguards of in absentia procedures are not respected. It is similar to those that apply for other mutual recognition instruments since the entry into force of Framework Decision 2009/299/JHA enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial 53 .
In addition, Member States shall ensure that legal remedies equivalent to those available in a similar domestic case are available in the Member State where the offence was committed and the offender may also appeal against the decision that ensures the Union-wide effect of the driving disqualification, abolishing such effect and restricting the disqualification to that of the Member State of the offence when successful. Moreover, information will need to be provided by the authorities about the possibilities under national law for seeking such legal remedies when these become applicable and in due time to ensure that they can be exercised effectively.
If applied with proportionality and complemented with effective procedural safeguards as described above, the measures in this proposal are compatible with fundamental rights requirements.
4. BUDGETARY IMPLICATIONS
For transmission and communication between authorities, already existing technical solutions (such as RESPER - the network for the exchange of information related to driving licences) are foreseen.
Some technical modifications would be needed to ensure that RESPER is able to exchange additional elements related to driving disqualifications. It should be noted however, that overall, these costs are likely not to be substantial. Member States are envisioned to cover their own costs that arise from the application of the proposed Directive. The associated costs are related to the additional time spent on investigations and the costs associated to the notification of the foreign offender.
Finally, it is worth noting that although driving disqualifications are often coupled with pecuniary penalties, this proposal purposefully disinclines from its scope such penalties and as such will not contribute in their enforcement.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The proposal imposes a reporting obligation on the Commission towards the European Parliament and the Council, concerning the implementation of the proposed directive, including, in particular, its impact on road safety. The report of the Commission is due five years after the transposition of the proposed directive by the Member States.
• Detailed explanation of the specific provisions of the proposal
The proposal aims to ensure a high level of protection for road users in the Union, by laying down rules providing for Union-wide effect of driving disqualifications for major road-safety related offences committed in a Member State other than the one that issued the driving licence of the offender.
Article 2 provides definitions of certain key concepts used in the proposal.
These includes definitions of concepts such as ‘driving disqualification’, ‘Member State of the offence’ (where the offence takes place), ‘Member State of issuance’ (which issued the driving licence) and ‘person concerned’.
The definition of ‘driving disqualification’ encompasses any final decision imposing a driving disqualification related to the commission of a road traffic offence that results in any measure of the withdrawal, restriction or suspension of the driving license or right to drive, regardless of whether it qualifies as a safety measure or a penalty or as an administrative or criminal sanction. The concepts of withdrawal, restriction and suspension are also defined. The directive is applicable to a limited number of well-defined ‘major road-safety-related traffic offences’, namely drink-driving, speeding, driving under the influence of drugs, and infringing road traffic regulations and causing death or serious bodily injury as a result. It also defines ‘additional conditions’ as conditions that the person concerned by a driving disqualification must fulfil in order to recover his or her driving licence or right to drive.
For some concepts, such as ‘major road safety related traffic offences’, ‘power-driven vehicle’, ‘driving licence’ and ‘normal residence’, cross-references to definitions in other Union instruments are made.
It establishes the principle that a driving disqualification issued by a Member State to a person who is not a normal resident in that Member State and who holds a driving license issued by another Member State should have Union-wide effect.
The Member State of the offence is required to notify the Member State of issuance of any driving disqualification of a duration of at least one month. The notification should be done by means of a standard certificate, transmitted between the national contact points of the two Member States concerned.
This provision empowers the Commission to adopt an implementing act to establish the format and content of the standard certificate before the date of transposition of the Directive. The most important elements that the certificate should contain are listed in this provision.
This article also lays down rules on the languages in which the certificate may be transmitted and specifies that the certificate should be transmitted via RESPER.
The Member State of issuance should take the appropriate measures to ensure that the driving disqualification has Union-wide effect, unless a ground for exemption laid down in Article 8 applies.
In cases where the driving disqualification consists in a withdrawal of the driving licence or right to drive, the Member State of issuance should withdraw the driving licence. The person concerned should regain the driving licence or right to drive in accordance with the rules applicable in that Member State in similar circumstances. That Member State shall also take into account, as far as possible, any part of the conditions that the person concerned has already fulfilled in the Member State of offence in order to recover the driving licence or the right to drive.
In cases where the driving disqualification consists in a suspension or a restriction of the driving licence or right to drive, the measure taken by the Member State of issuance should be limited to ensuring that the Union-wide disqualification has the same duration as that imposed by the Member of offence, irrespective of whether conditions are imposed by that Member State for the person concerned to recover the driving licence or right to drive.
This article clarifies that the Directive and in particular the application of any grounds of exemption laid down in Article 8 by the Member State of issuance does not prevent the execution of the driving disqualification imposed by the Member State of the offence within its territory.
Moreover, it clarifies that when a driving disqualification imposed by that Member State of the offence includes conditions that the person concerned must comply in order to recover the driving licence or right to drive, that Member State can continue to apply the disqualification on its territory until the conditions are complied with.
Article 8 lays down an exhaustive list of grounds of exemptions, on which basis the Member State of issuance must refuse to give Union-wide effect to the disqualification and a list of additional grounds of exemptions on the basis of which it can refuse to give such Union-wide effect.
The list includes such grounds of exemption as incompleteness of the certificate; age limit of the person concerned; immunity or privilege; or the fact that the remaining period of driving disqualification is of less than one month.
Before invoking any grounds of exemption, the Member State of issuance should consult with the Member State of offence.
This Article establishes that the Member State of issuance must take the measure giving Union-wide effect to the driving disqualification not later than 15 days after the receipt of the certificate.
In specific cases where it is not possible for the Member State of issuance to meet the time limit set for the phase of recognition, it must inform and consult the Member State of offence but remains obliged to give Union-wide effect to the driving disqualification, without delay.
This article provides Member States should consult each other, via appropriate means and without delay, to ensure the efficient application of this Directive.
This Article provides for obligatory communication of information by the Member State of issuance to the Member State of the offence on different aspects and steps in the procedure.
Under this Article, the Member State of the offence must inform the Member State of issuance of circumstances that may affect the original decision imposing the driving disqualification and of the completion of driving disqualification in its territory.
The Member State of issuance must notify the person concerned a decision or measure taken in relation to the driving disqualification. Specific reference is made to the information to be shared on legal remedies available under the law of the Member of issuance.
This Article provides that Member States should ensure that adequate legal remedies against decisions taken pursuant to this Directive are in place. It clarifies that the driving disqualification that has been notified by the Member State of the offence should only be challenged in an action brought in the Member State of the offence.
Member States must establish national contact points. In accordance with Article 4, these national contact points transmit the certificates. They should also cooperate with the authorities involved in the enforcement of the driving disqualifications.
Under this Article, Member States must regularly collect data from the relevant authorities and maintain comprehensive statistics regarding driving disqualifications. The statistics collected are to be sent to the Commission each year. Collecting comprehensive data regarding driving disqualifications is necessary to allow a thorough assessment of the functioning of the mechanism laid down by this Directive.
This Article establishes the procedure for the adoption of the implementing act referred to in Article 5.
This Article establishes that this Directive does not affect the rights and obligations stemming from Union legislation concerning judicial cooperation and the rights of suspects and accused persons.
Member States have to transpose the provisions of the Directive within a given timeframe and have to notify these national measures to the Commission.
A reporting obligation is established and placed on the Commission as regards the implementation of the proposed directive.
This is a standard provision stipulating that the Directive is to enter into force on the twentieth day following its publication in the Official Journal.
This is a standard provision stipulating that the Directive is addressed to the Member States.