Colin Wilson, IBI Group, looks at the implications for enforcement of the European Commission's new Action Plan for the Deployment of ITS in Europe
In December 2008, theWhat is interesting to note is that while safety remains high on the EC's agenda alongside other priorities such as cleaner and more efficient road transport, there are some specific safety-related topics which, if one reads the Action Plan in isolation, might appear at first glance to be dropping off the radar.
Take, for example, enforcement and the cross-border enforcement of road traffic rules in particular. In recent years, The EC's interest in this area has been growing especially given the increase in cross-border traffic. This culminated in a stakeholder consultation exercise and, in March 2008, the launch of a proposed new Directive on cross-border enforcement. Unfortunately, this proposal did not progress through the
Does enforcement merit inclusion?
This is a good question and depends very much on your viewpoint. Yes, enforcement can involve the use of ICT at the roadside to detect offences. Yes, it can involve the exchange of data between agencies in different states. However, it's questionable whether these 'qualify' enforcement as being a core ITS application and therefore whether it really merits a place in The EC's ITS Action Plan.Taking a different viewpoint, one could argue that it enables the efficient operation of a number of important ITS applications which are part of the Action Plan. In its one and only reference in the Explanatory Memorandum to the proposed new Directive, enforcement is recognised as playing an important role in ensuring that electronic tolling is fair and equitable (although only insofar as it relates to 'commercial' users).
Extending this further to another example, transport companies which habitually flaunt regulations on driving and resting times as well as other commercial transport regulations should have their operating licences revoked. This can only be done by the Member State which issued their operating licence and, as demonstrated by the recently completed TUNER project, is a different application of now-familiar cross-border enforcement principles.
The answer to the question also depends, in part, on where one thinks enforcement sits within the Commission itself. Is it a transport-related issue and therefore clearly within the remit of DG Transport and Energy, or is it a legal issue and therefore more likely to fall within the remit of DG Justice, Freedom and Security? At first glance this appears to be a moot point - all parts of the EC should be working towards the same ends and so it should not matter. However, the difference is crucial when it comes to positioning and agreeing new enabling legislation under the current three-pillar structure of the (EU). As has been apparent during discussions over the proposed cross-border enforcement Directive, this is a grey area and the real answer is that enforcement probably lies somewhere between the two.
Where does this leave us?
So where does this leave us in terms of the future of cross-border enforcement and its place in the ITS Action Plan?In terms of its place in the Action Plan, perhaps it could be argued that enforcement does have relevance to the Plan albeit as an enabler of other ITS applications rather than a core ITS application in itself.
In terms of cross-border enforcement, the short-term future is less clear. The developments of recent months and in particular, the stuttering progress of the EC's proposed new Directive have focused the minds of those with a professional interest in this area.
To assess the current situation, let's first take a look at what we have on the table. There is broad agreement as to how cross-border enforcement should work across the EU from the point at which an offence is first detected through to the enforcement of a penalty. There are also tools (such as the EUCARIS system for exchanging vehicle registration data) and in many cases, legislation (such as the Prüm Treaty and the COPEN Framework Decision) to support parts of the process.
What are we still missing? First of all, there is still no overarching EU legislation which requires Member States to carry out cross-border enforcement, let alone carry it out in a way which makes it easier for Member States to cooperate with each other. There is also legislation missing in terms of some of the specific areas of the end-to-end enforcement process. Finally, once in place, these need to be translated into operational practices which respect both national requirements as well as the requirements of EU legislation.
Each of these missing elements eventually needs to to cover all types of road traffic offences and all types of penalties although it is recognised that a more gradual implementation approach may be both prudent and necessary. It is important to note that several of these issues were addressed in the EC's proposed Directive on cross-border enforcement.
To achieve all of this given the current situation with the proposed Directive will take time: time to draft and agree, time to approve, time to implement and time to make operational. The reality therefore, is that EU legislation enabling cross-border enforcement is still likely to be some years away.
A short-term fix?
Is there a short-term alternative to EU legislation? Enforcement practitioners are already turning their attention to the use of bilateral agreements which are considered to be a good way forward in the the short-term. A number of Member States already have bilateral agreements for some elements of the cross-border enforcement chain and although typically more limited in their scope than the kinds of overarching legislation discussed earlier, they have proven to be relatively successful.Where such agreements are successful on a bilateral basis, there is the prospect that they can grow into broader multilateral agreements and form the basis for larger regions of cross-border enforcement cooperation within the EU and ultimately, even form the basis for a de facto EU agreement. This will be a lot easier to achieve if bilateral agreements can be based on accepted cross-border enforcement principles including:
• Member States have to make their best endeavours to cooperate;
• the legal process to be followed is that of the Member State where the offence took place;
• use of EUCARIS to identify vehicle owners/keepers;
• Member States have to accept legal decisions from other States other than under specific circumstances such as due process not being followed;
• notifications must be sent in a language the offender is likely to understand;
• offenders from other Member States must be offered the same rights of appeal and so on as offenders from within the State where the offence took place, and;
• the requirements of the COPEN Framework Decision should be used to enforce a final decision.
In theory, this could be achieved through the use of a common 'framework bilateral agreement' for cross-border enforcement whereby the fundamental principles to be adopted are common to all but where they can be adapted to suit national procedures and where supplementary national requirements can be added as necessary.
While this is not the quickest way forward, it could be one of the most appropriate in the continued absence of the necessary EU legislation.
Tolling and charging
Let's not forget enforcement of electronic tolling and charging schemes. After all, it is the only time cross-border enforcement is explicitly mentioned in the Explanatory Memorandum to the proposed new Directive. Why is this not happening? After all, road operators and concessionaires across Europe are losing revenue through non-payment of tolls and charges and one would have thought this would have galvanised them into action.Indeed it has but, as with the enforcement of road traffic legislation, there are many reasons why this does not happen. Some of these reasons are due to national legislation and the restrictions on concessionaires' legal authority to access vehicle owners/keepers data, for example. But fundamentally, it comes down once again to the lack of legislation at the European level. Even if road operators and concessionaires had all of the tools in place at a national level, they would still be limited in what they could achieve across borders because of the lack of legislation to allow them to enforce penalties on non-residents.
