EuroSPARKS Dissemination Seminar VNG, Den Haag.

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EuroSPARKS Dissemination SeminarVNG, Den Haag.

• Dr. Mike Varney,
• Lecturer in Law,
• Deputy Director, IEPL,
• The University of Hull, UK.
• M.R.Varney_at_hull.ac.uk
• 11th October 2007.

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Content of Todays Presentation

• Why was the EuroSPARKS project created?
• The major questions for the legal team.
• The main problems that we discovered
• From national perspectives.
• From the European perspective.
• The potential solutions their pitfalls.
• The final recommendations.
• The importance of resolving this problem.

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Why was the EuroSPARKS project created?

• Significant challenges in cross-border
  enforcement for TfL.
• Parking offences.
• Congestion charge.
• Minor traffic violations.
• A number of other authorities facing similar
  problems.
• Acknowledgement that cross border enforcement is
  a problem by the European Commission.

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The EuroSPARKS Project

• Traffic management is an increasingly difficult
  problem
• Congestion in our cities.
• Increasing environmental challenges.
• Growth in consideration of road user charging.
• Cross border traffic is significant
• Transit.
• Tourism.
• Increased number of EU countries.

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The Present Situation

• Some existing EU law measures of potential use
• Regulation 44/2001 on Civil and Commercial
  matters.
• Regulation 805/2004 on the European Enforcement
  Order.
• Council Framework Decision 2005/214/JHA (COPEN
  24).
• More research was needed on potential solutions.

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The Major Questions for the Legal Team

• What are the major legal problems facing those
  who seek to enforce penalties for traffic
  violations across borders?
• Could any existing legal measures be used to
  solve problems of cross border enforcement?
• If not, what new solutions might be possible and
  desirable?
• What would such a new solution need to do in
  order to make cross border enforcement effective?

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The Nature of the Problem

• At the EU Level
• No specific legal measures on the issue of
  cross-border enforcement in this context.
• Relatively few measures harmonising treatment of
  car drivers.
• Difficulties caused by differing legal
  conceptualisations in the Member States.
• Need to think about the appropriate legal basis
  for resolving some of these problems.

• In the Member States
• Not all Member States view traffic enforcement in
  the same way
• Criminal
• Administrative/Regulatory
• Different traffic management priorities and
  methods exist.
• The bodies responsible for traffic enforcement
  and the imposition of penalties vary in the
  respective Member States.
• All face similar practical difficulties in
  enforcement.

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Effective Cross Border Enforcement
Availability of Owner Information
Simple Legal Process for Enforcement
Effective Process for Cross Border Enforcement of
Traffic Violations
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Londons Example

• A range of offences exist under a decriminalised
  structure, all of which attract financial
  penalties.
• Parking offences.
• Non-payment of Congestion Charge.
• Moving traffic offences of some types.
• Enforced by Local Authorities or Transport for
  London.
• Issuance of PCN.
• Potential for increased fine for non-payment.
• Can ultimately be enforced by the courts as a
  civil debt.
• Appeal possible to an adjudicator, on the grounds
  provided in legislation.
• Highly effective in the UK, but problems are
  faced when enforcing against motorists from other
  EU Member States.

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The Position in Other Member States
Problems arise because the concept of
decriminalisation is different in each state!
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The Realities at Present
Availability of Owner Information
Simple Legal Process for Enforcement

• No coherent framework for the access to this
  data.
• Some agreements between individual states.
• Without this data, enforcement cannot begin!

• Enforcement in Private International Law.
• Difficult, slow and expensive.
• Often not possible.
• Some agreements between individual states.
• Many of which not entirely effective.

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Our FindingsTransfer of Owner Information.

• Data protection is a complex area, beset with
  problems due to various national sensitivities.
• There are presently some agreements amongst
  individual states which have proved fruitful.
• On the whole, the impact of these is limited.
• Even where owner information is available, things
  are not always simple!
• There is no definitive legal barrier to data
  sharing.
• Possible for legislation from the EC to harmonise
  data transfer in this field.
• Potential for states to have agreements outside
  the EU framework, or under the EU, rather than EC
  Treaty.

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Our FindingsTransfer of Owner Information.
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Our FindingsEnforcement.

• Present arrangements on enforcement are not
  generally effective.
• Measures as part of EU or EC law.
• Inter-state Treaties and Conventions.
• Private International Law.
• There is little potential for existing measures
  in EC or EU law to provide a comprehensive
  solution to our problem.
• A caveat applies to Council Framework Decision
  2005/214/JHA (COPEN 24).
• While there may be some appetite for inter-state
  agreements in this area, a comprehensive solution
  seems unlikely via this route in the short to
  medium term.
• Certain legal conceptualisations cause problems
• Decriminalised.
• Civil enforcement.

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Potential Bases for Enforcement under the EC
Treaty
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Article 71 EC

• Legal Basis on Common Transport Policy Art.
  71(1) EC
• For the purpose of implementing Article 70, and
  taking into account the distinctive features of
  transport, the Council shall, acting in
  accordance with the procedure referred to in
  Article 251 and after consulting the Economic and
  Social Committee and the Committee of the
  Regions, lay down
• (a)  common rules applicable to international
  transport to or from the territory of a Member
  State or passing across the territory of one or
  more Member States
• (b)  the conditions under which non-resident
  carriers may operate transport services within a
  Member State
• (c)  measures to improve transport safety
• (d)  any other appropriate provisions.
• It is only possible to know the precise scope of
  Article 71 EC from the case law of the European
  Court of Justice.
• Measure that we are looking for certainly not
  ruled out.

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Article 71 EC

• Some indicators that Article 71 could and should
  be used
• Decisions of the ECJ in Case C-211/01 Commission
  v. Council and Case C-336/03 Easycar.
• Developments in Transport Policy.
• More road pricing schemes under consideration.
• Some efforts for pan-European charging for HGVs.
• EURoPRice project and Directive 2004/52/EC on
  electronic road user charging.
• Committee set up to negotiate on implementation.
• Enforcement flagged as an important issue in
  para. (m) of Annex 1.

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Measures under the EU TreatyCouncil Framework
Decision 2005/214/JHA.

• This measure has potential application as it
  stands.
• Mutual recognition of financial penalties, based
  on the law of the requesting state.
• Applies to criminal penalties.
• Some uncertainty about decriminalisation!
• Need for involvement of court having criminal
  jurisdiction.
• Is attractive to some states (esp. Germany and
  France).
• Is not a comprehensive solution
• States can refuse mutual recognition where
  fundamental rights of defence/procedure have been
  violated.
• Does not deal with data transfer.
• Enforcing state keeps all the finance in the
  absence of contrary agreement.
• Is not yet fully implemented.

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Inter-State Conventions and Treaties

• There is some evidence that a number of states
  might be willing to enter into a further
  agreement in this area.
• The creation of such agreements can be
  exceptionally time consuming.

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Our Conclusions

• A Directive on cross border enforcement of
  financial penalties for minor road traffic
  offences is the most desirable option. It would
  have its legal basis in Art. 71 EC.
• In the absence of this measure, COPEN 24 might be
  extended in order to facilitate cross border
  enforcement of financial penalties of the type
  that we are concerned with.
• If neither of these possibilities are adopted, we
  should look to a multilateral Treaty amongst
  Member States outside of the EU framework.

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The Directive

• Advantages

• Disadvantages

• Offers the most complete potential solution
• Data transfer.
• Cross border enforcement.
• Has direct effect.
• A Directive rather than a Regulation has a number
  of advantages
• Allows each Member State some flexibility in
  implementation.
• Respects the principle of subsidiarity more
  closely.

• No absolutely clear indication from the ECJ that
  Article 71 EC provides a legal basis.
• Directive would need careful drafting
• Avoid the problems caused by the decriminalised
  and administrative penalties.
• Need to ensure that it was clear whether offence
  would need to be part of issuing or enforcing
  states law.

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Major Features of the Directive

• Would not seek to harmonise the actual offences
  which exist in each Member State.
• Would provide for the enforcement of penalties
  imposed in another Member State.
• Based on principle of mutual recognition.
• Would ensure enforcement regardless of legal
  classification as civil/criminal/administrative.
• Would permit use of its own usual enforcement
  procedure for traffic violations by the enforcing
  Member State.
• Might provide for a set of enforcement practices
  akin to those under the European Enforcement
  Order.
• The state in which the offence was committed
  would receive the money.
• Would provide for comprehensive data transfer in
  order to permit enforcement.
• Would ensure minimum standards for procedural
  protections and rights of defence.
• Penalties would need to be proportionate.

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Modification of COPEN 24

• Some effort would need to be made to clarify the
  enforcement of decriminalised penalties
• Either Member States where enforcement is
  decriminalised must re-create criminal
  offences, or COPEN 24 must be extended to cover
  administrative penalties with greater clarity.
• There would need to be some provision for data
  transfer.
• There would need to be some provision for
  allocation or sharing of the financial penalties.
• COPEN 24 would need to be fully implemented.

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Bilateral or Multilateral Treaties

• Would need to contain provisions on all of the
  issues discussed for the proposed Directive.
• Should ensure the inclusion of two important
  issues
• Procedural protections/rights of defence.
• Data transfer.
• Would need to be adopted by a large number of
  states in order to create an effective framework
  for enforcement.
• Would the adoption of such agreements take too
  long?

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Why is this Important?
Effective Traffic Management
Effective Enforcement
Road Pricing
Possible Environmental Measures.