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7th Symposium of Lawyers - Paolo Zucconelli
“Diversity of controls and sanctions in goods road transport: helping your hauliers through the maze of unharmonised applications” Avv. Paolo Zucconelli, Studio Legale Dindo, Zorzi & Associati, Verona (Italy) 7th Symposium of Lawyers, Members of the IRU Legal Assistance Network CONTROL AND SANCTIONS POLICY FOR ROAD HAULIER REGISTRATION ACCESS QUALIFICATIONS PREAMBLE This paper aims to provide a brief and practical description of what is required to be able to pursue the occupation of haulier, especially in a way that will avoid incurring the sanctions imposed for irregular transportation documentation. The regulation of access to the occupation of haulier is governed by Law 298 of 6th June 1974 (as amended, particularly by the legislative decree D. Lgs. 395 of 2000)), which set up at the Ministry of Transport a National register of individuals and corporations acting as hauliers of goods for others. To qualify for registration the haulier must be transporting goods by road for hire and reward. The prejudicial consequences, both for those acting as road hauliers without such registration and for those who use non registered hauliers, are still more serious after the approval of the recent radical road transport reform that came into force with the legislative decree of 21.11.2005, n. 286, which is the main law on the subject and which has effected substantial changes to the essential characteristics of the profession. With the so-called regulated deregulation of the road haulage system introduced by the reform of 2006, the competent authority extended the regulator’s power of control over a greater number of documents and in a greater number of cases. One of the principal innovations introduced was the requirement for the transport contract to be in writing (in ‘registered’ form) and the mandatory listing of contents for the movement of goods to be able to take place. All this is connected with the establishment of co-responsibility between the owner of the goods, of the principal, and of the haulier in relation to any breach of safety regulations, as well as the introduction of new liability limits for the carrier for loss or damage to the transported goods (articles 6 to 10 D.Lgs. 286/2005). Written contracts provide the Authority or regulator with access to greater detail for checking that the haulage service is not offered or requested on terms that fail to comply with road safety regulations, while at the same extending the powers of the authority to control road usage documents, particularly with regard to pirate or irregular transportation. HAULIER REGISTRATION ACCESS REQUIREMENTS Application to register must be submitted to the provincial offices of the Ministry of Transport. Individuals or corporations that wish to register must apply to the provincial committee for the area in which the concern has its main place of business. If the company has more than one place of business it must be registered with the individual committees in the districts in which the business has its branch offices. Such registration is obtained by notification accompanied by certification of registration on the register of the main place of business and registration of the secondary branch at the local chamber of commerce. The application for registration varies according to the type of vehicles the haulier intends to use: Most importantly there are three new requisites for all those wishing to carry out such road haulage services, with the sole exemption of those carrying out such work using vehicles with a total mass below 1.5 t. The decree therefore sets forth the following requirements: Article 14 of Law 298/1974 also permits community operators to be registered but subject to certain conditions. Individuals and corporations of a member state of the EEC may be registered on the registry provided:
A special section of the register contains a list of those who have obtained qualification for special transportation. The transportation for which special qualifications are required in view of the nature and importance of the individual businesses is a matter determined by the ministry of transport on hearing proposals from the registry’s central committee. The list of companies that have been granted permission to carry out special transportation business is communicated to the competent bodies of the public administration so that such permission can be added to the vehicles’ circulation documents. Checks on due registration of the haulier in relation to the transportation of any particular goods can be carried out on line at the website http://www.alboautotrasporto.it/. INTERNATIONAL TRANSPORT Article 44 of Law 298/1974 addresses the question of international transport. Companies in Italy with authorisation or licence to transport goods can be admitted to carry out international haulage in accordance with any bilateral or multilateral restrictions that may apply provided they have the special requisites set forth in the corresponding regulations. Foreign companies can carry out international haulage services in Italy that comply with the regulations in the country of origin and on condition they have the valid qualification to carry out international transportation as required by bilateral or multilateral agreements. It is therefore the principal’s responsibility to verify that the foreign operator does in fact have valid qualifications for the carrying on of the haulage business. MANNER AND SUBJECT OF CONTROLS CARRIED OUT BY THE COMPETENT BODIES ON ROAD VEHICLES The ministry of transport issued a decree on 22 February 2006 with the purpose of providing a model check list for uniform checking procedures on vehicle road usage compliance for hauliers carrying goods for third parties. The decree covers controls on compliance with regulations and includes checks on documents accompanying the vehicles, those of the driver and those for the transported goods, as well as on the type of authorisation for the haulier’s business and the haulage contract itself. The model check list provided for checks on compliance with administrative road use regulations is attached hereto and is an important reference point for all national and international transportation. It is important that the haulier can travel safe in the knowledge that he is possession of all required documents and that his business is order, so as to avoid penalties being incurred when checks are carried out. a) Domestic haulage – list of checks as in annex I PENALTIES The system of penalties applicable in relation to haulage businesses depends on whether the sanction relates to the haulier being without a particular authorisation or qualification or whether it is administered to the principal who has given the work to a haulier who is not in possession of the required authorisation (Articles 26 and 46 L. 298/1974 and article 7 D.Lgs 286/2005). The haulier carrying on his business without being registered, or who continues to work during a period of suspension or after expulsion from or deletion from the registry, shall be punished by an “administrative sanction” or pay a fine of from € 2,065.83 to € 12,394.97. The above infringements are also accompanied by the vehicle being taken off the road for three months or, in the case of repeated violations, the confiscation of the vehicle. Similar penalties apply to anyone transporting things with vehicles without a licence or authorisation or infringing the terms or limits established by the licence or authorisation. The principal, the loader and the owner of the goods that use the transport service of a haulier that has not the necessary qualification, or who operates in violation of the terms set forth in the qualification, or that use a foreign haulier that does not possess a suitable qualification that permits it to carry out the transportation service in Italy, will be punished by a fine of from € 1,549.37 to € 9,296.22. The infringement is followed by confiscation of the transported goods by the Italian highway police. The same fine also applies to the principal who makes a contract in non written form and who has not at the same time acquired the following documents from the haulier:
It is important to recall that any haulage contract made after the reform is deemed NOT to be in written form not only when it is completed as an oral agreement but also when, though in writing, it lacks even only one of the following essential elements of the contract:
It is possible to appeal against the sanctions within 60 days, to the prefecture or justice of the peace. INITIAL QUALIFICATION AND PERIODICAL TRAINING OF DRIVERS The reform of 2006 finally implemented EC directive n. 2003/59/CE on the initial qualification and periodical training of drivers of vehicles equipped for the transport of goods or passengers and finally an update of Italian national law to reflect Community law on the driver training (articles13 to 23 of the D.Lgs 286/2005). The law in question covers “Initial qualification and periodical training of the drivers of certain vehicles equipped for the transport of goods or of passengers” and which introduced the “Driver’s qualification card”, or “Professional certificate”, the issue of which is subject to possession of a currently valid driving licence. This “second driving licence”, frequently invoked with the coming into force of the points system on driving licences, permits the drivers of vehicles of a total mass above 3.5 tonnes not to be penalised in their working capacity where offences are committed when driving other vehicles in their free time and, at the same time, the traditional driving licence remains clean in the case of an infringement committed when the driver is driving occupationally. The professional licence is only issued following attendance of a specific course and the passing of an examination for the certification of the initial qualification, with a mandatory refresher course every 5 years (of 35 hours) for the renewal of the licence. The periodic training allows the licence holders to “improve essential awareness for the carrying on of their occupation, with particular regard to road safety and rationalising fuel consumption”. The professional training course, required for the issue of the certificate qualification, is 280 hours long, 20 of which at the wheel of a vehicle of the category for which the driver wishes to obtain the certificate. There is a list of subjects required to be studied in the initial course and in the periodic refresher course for the maintenance of and renewal of the Card or licence: Those that on the date the decree came into force were already in possession of a C, E or D driving licence do not have to do the training course or have to take any examination. The certificate is required by all drivers resident in Italy that carry on work involving the transportation of things or persons and by drivers that are citizens of countries that are not member countries of the EU or of the European economic space that carry out their work as employees of a company transporting persons or things that is established in Italy. Friday 14/03/2008 Avv. Paolo Zucconelli ANNEX I NATIONAL ROAD HAULAGE
1) VEHICLE DOCUMENTS Matriculation 2) DRIVER'S DOCUMENTS ID Document Essential elements
Any other items
5) AUTHORISATION SYSTEM CONTROL DOCUMENTS FOR FREIGHT CARRIAGE BUSINESS
License for transportation of things on own account
Registration on the register of carriers for hire or reward, including by means of self-certification with an indication of any restrictions Authorisations for exception haulage ANNEX II 1) VEHICLE DOCUMENTS Matriculation 2) DRIVER'S DOCUMENTS ID Document 3) INTERNATIONAL FREIGHT HAULAGE CONTRACT (CMR) Nature and quality 6) AUTHORISATION SYSTEM CONTROL FOR FREIGHT CARRIAGE BUSINESS a) Own account carrier Annex III 1) VEHICLE DOCUMENTS 2) DRIVER'S DOCUMENTS 3) INTERNATIONAL FREIGHT HAULAGE CONTRACT (CMR) 6) AUTHORISATION SYSTEM CONTROL DOCUMENTS FOR FREIGHT CARRIAGE BUSINESS C.E.M.T. authorisation ANNEX IV 1) VEHICLE DOCUMENTS 2) DRIVER'S DOCUMENTS ID Document 3) INTERNATIONAL FREIGHT HAULAGE CONTRACT (CMR) Nature and quality 6) AUTHORISATION SYSTEM CONTROL FOR FREIGHT CARRIAGE BUSINESS Bilateral or Community Transit Authorisation
If the vehicle is equipped with digital chrono-tachograph, details of the data on driving and rest times In accordance with the resolutions of the Central Committee for the registry of road hauliers of 27 January 2005 To be performed if such data are not available from the transport contract or if the contract has not be drawn up in written form or is not on board Compliant with annex 1 of presidential decree D.P.R. 783/77, containing a list of the things carried and a statement that they are owned by the licence holder or that the conditions apply as provided for in letter C) of article 31 of Law n. 298/74 If the vehicle is equipped with digital chrono-tachograph, details of the data on driving and rest times To be performed if not already included in the C.M.R. or if the CMR itself was not drawn up in the required written form or is not on board Document (or addendum to other carriage document) drawn up by comapnies that carry out combined carried according to Directive 92/106/CE If the vehicle is equipped with digital chrono-tachograph, details of the data on driving and rest times To be performed if not already included in the C.M.R. or if the CMR itself was not drawn up in the required written form or is not on board If the vehicle is equipped with digital chrono-tachograph, details of the data on driving and rest times |
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