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7th Symposium of Lawyers - Conclusions by Isabelle Bon-Garcin
“Diversity of controls and sanctions in goods road transport: helping your hauliers through the maze of unharmonised applications” CONCLUSION We have reached the end of our Symposium and the time has come to draw conclusions from the fruitful discussions we have had today. Remember the days when road transport was subject only to a few rules about driving? There was a time when being brave and bold was enough to establish and develop a transport undertaking. But now, the terms for providing transport services are strictly monitored in a highly competitive sector, and the truck’s image is becoming more and more negative in the eyes of the public as well as of political decision-makers. This need for both economic and social regulations arose mainly with transport liberalisation, which is partly responsible for cut-throat competition, a price collapse and problems in complying with social standards. As transport is carried out on the public highway, poorly regulated competition may have severe consequences on road safety or in the social domain. Although it is necessary to monitor this activity, the primary objectives should not be forgotten, i.e. reorganising the industry, developing fair competition and offering a reliable, efficient and clean transport mode. Now it clearly emerges from our speakers’ addresses that there are varying degrees of legal and regulatory diversity from one country to the next and that the regulation of controls and sanctions regarding road transport is subject to a host of different provisions, whatever the field concerned. Even within integrated environments, such as the European Union, we have seen that, generally speaking, monitoring and sanctions still remain a purely national area of competence. Two main questions have constantly arisen throughout this Symposium – why should the regulatory framework governing road transport be harmonised and how can this be achieved? 1° - Why harmonise? ° Regarding the legislative and regulatory framework
More generally speaking, as stressed at the Symposium’s opening, this lack of harmonisation results in market under-performance, legislation failing to reach its objectives, a reduction in driver productivity and cost increases both for the authorities and for carriers and, ultimately, for their customers. ° Regarding monitoring of the framework and resulting sanctions The purpose of any check should be to identify infringements. They should not, however, hinder traffic or the activities of a company. Now the differences observed in their application favours their use either for protectionist reasons or as retaliatory measures. Some authorities do not hesitate to check and sanction foreign carriers more than their own citizens. Conversely, language-related problems or difficulties in understanding transport documents can also mean that enforcing agents sometimes hesitate to stop foreign carriers, leading their own nationals to think that only they are targeted by the authorities. Immobilising a vehicle can have drastic consequences, whether it carries goods or people. As for sanctions, they should be commensurate with the infringement and primarily target activities which pose a real threat to road safety or transport security by distorting the market. It would also be good to better distinguish between formal errors and fraudulent intent. Let us not forget that vehicle immobilisation can have a dramatic impact on a company. One may think that the vast majority of road carriers are honest people who genuinely try to observe all the various legislation governing their work. However, in the face of this host of regulations and of the many infringements which a road carrier may commit, there is a very real and “sincere” lack of knowledge of the rules which necessarily turns all undertakings into offenders. Checks and sanctions applied to road carriers’ activities should better take this into account. Unfortunately, it is tempting for administrations to use the application of checks and sanctions for protectionist reasons, and to monitor and sanction foreign carriers more than their own citizens. As stressed at the Symposium’s opening, this lack of harmonisation and coordination results in market under-performance, legislation failing to reach its objectives, a reduction in driver productivity and cost increases both for the authorities and for carriers and, ultimately, for their customers. The Resolution which was adopted yesterday by the IRU Commission on Legal Affairs aims to recall these important principles. As you can read in the document we have made available to you, the IRU insists that standardisation of regulations, monitoring and sanctions is indispensable for road transport to perform well. 2° How to harmonise? There is a strong temptation – especially among lawyers – to put forward new rules. However, it is not always useful to reinvent the wheel and one should note that international facilitation and cooperation instruments already exist which make it possible to put a simple and transparent regulatory framework in place which can be implemented in a harmonised manner, thus allowing for better compliance with and efficient enforcement of the regulations governing road transport and of the resulting checks and sanctions. Some recent international instruments, such as the new Protocol to the CMR Convention governing the use of electronic consignment notes, or the new Annex 8 to the 1982 International Convention on the Harmonization of Frontier Controls of Goods, serve to rationalise monitoring. In particular, Annex 8 to the 1982 Convention will make it possible to replace physical inspections and checks at borders by verification of internationally accepted standard documents and certificates, which means that the required checking of drivers, vehicles and loads can take place at the point of departure or of destination. One should also further develop exchanges of information and cooperation between the various authorities involved. We are insisting on better coordination, in particular through the introduction of joint checks and a better harmonisation of the work of the various enforcing authorities at the borders. This will not, however, spare us from some grooming of the existing legal framework and it would be good to pay more attention to the representatives of the road transport industry, who are rarely called upon to give their opinion in this field. You will note that this Resolution also insists on more transparency, for example regarding information on dates of transposition or entry into force, national specificities, or appeal procedures against administrative or penal judgments. We would like to recall that checks should not hinder road traffic and that sanctions should target the small minority of serious and persistent offenders rather than penalise honest transport operators. Any checks should be based on risk assessment and avoid any discrimination. We are insisting on better coordination, in particular through the introduction of joint checks and a better harmonisation of the work of the various enforcing authorities at the borders. These factors are all in line with what we have observed today. As Mr de Pretto reminded us this morning, the IRU slogan is “Working together for a better future”. This Resolution is a step towards a better future, where honest carriers who observe the rules should be able to practice their profession without administrative hindrance or discriminatory measures. I hope that I can count on your support for this Resolution, which I propose you now adopt by acclamation. |
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