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Nathalia Volk, Director, Evroclub, Passenger Transport Company, Ukraine
1st Interactive Panel Session
Nathalia Volk, Director, Evroclub, Passenger Transport Company, Ukraine Advantages of Harmonised Bilateral Agreements in Bus and Coach Services in the CIS and Beyond. As is clear from the title of my report, I am putting forward for discussion the topic of the advantages of harmonised bilateral agreements in international road transport. I shall start my report with a brief digression into history because the countries which once made up the USSR (let me recall that there was such a state) have already lived through a period of completely harmonised road transport between their respective territories. The USSR, which was composed of 15 constituent republics, had Union (Soviet) and Republican ministries. Ministries of Transport existed solely at republican level, and each republic had its own Ministry of Transport. Regular bus services between the republics were organised by means of correspondence between the ministries, such as between Ukraine and Belorussia, or between Ukraine and Russia. Each of the constituent republics had its own legislation governing road transport, but transport safety requirements, road traffic regulations, and technical standards were either uniform or extremely similar, and indeed at that time fully harmonised. The lack of agreements on road transport between the Union Republics did not affect the carriers at all. The Ministry of Transport in each republic protected the interests of its companies, which were all state-owned. For example, a new service is opened, and its timetable and travel itinerary are already being duplicated to some extent by existing bus routes. Within a certain period it becomes clear that the new route is taking passengers from other companies. If those affected submit documentary evidence to the Ministry of a decline in passenger numbers on their routes, because of the opening of the new service, a decision would be taken to close down the service or revise the timetable. Borders between the republics were purely notional. There were no customs formalities or visas. There was a single currency. Generally, the conditions were ideal. The only problem faced by the carriers was the late payment for tickets sold because only bus stations were entitled to sell tickets. These bus stations did not belong to the carriers and formed a separate structure within the Ministry of Transport. This was the situation only within the borders of the USSR, however, and the transport operations I have described were called not international but inter-republican. Transport operations beyond the borders of the USSR were regarded as international, and all matters relating to such transport operations fell within the competence of the Russian Federation Ministry of Transport. It was this responsible authority which prepared and signed agreements on international transport operations between the USSR and other countries. It must be noted that there were no regular bus services between cities in Ukraine and countries outside the USSR at that time. Rail transport was used for such trips. Incidentally, up to 1975, international freight transport also took place only by rail. Following the break-up of the Soviet Union, all the former Union Republics were forced to create a legal basis for international road transport both among themselves and in relation to other countries in Europe and Asia. The Russian Federation Ministry of Transport inherited the USSR's rights to international agreements already concluded, and needed only to enter into new agreements with the 14 former Union republics. On 18 May 1992, the Ukrainian Minister of Transport and the Polish Minister of Transport and Shipping signed an Agreement on International Road Transport on behalf of the governments of the two countries in Warsaw. This was the first intergovernmental agreement concerning international road transport concluded by Ukraine following the collapse of the Soviet Union. Ukraine engaged very actively in this process of concluding agreements and now has similar agreements with 43 countries. Each agreement usually concerns both passenger and freight transport. Only with France and Austria have separate agreements been signed for freight and passenger operations. The conclusion of such agreements has made it possible to create the legal foundations for the opening of regular bus and coach services between Ukraine and European countries. These agreements have been concluded gradually over a number of years and have frequently anticipated the need to organise regular services. In other words, a document regulating the opening and functioning of the route was drawn up first of all and then, at a later stage, transport operating partners from the two countries concerned were found, which then organised the regular international service. In the agreement signed between Ukraine and Poland, Article 3 is devoted to regular transport services. It consists of 4 subclauses, 10 lines in all. The first subclause states that regular transport operations may be carried out. The second subclause defines what is meant by regular transport operations. The third subclause states that each of the parties to the agreement shall grant permits for the operation of such services on the section of the route which passes through its territory. The fourth subclause states that the responsible authorities shall draw up a protocol on the methods and conditions governing the obtaining of permits. About one-third of such agreements contain similar wording. The remaining agreements contain a fairly detailed list of the required documents which the transport operator must submit to their responsible authority together with an application for the establishment of an international road transport service. Some agreements specify the period of validity of the permits, and very rarely there is a clause stating that the parties to the agreement shall facilitate priority border clearance for buses operating regular services. This is the meagre extent of the provisions concerning regular transport services. Their whole essence can be reduced to two points, the first stating that international routes can exist and the second requiring a permit for such transport operations. Having started to implement the provisions of these agreements, transport operators encountered specific problems which were not covered by the agreement concerned, including the following:
In some countries an application for the extension of a route permit has to be submitted six months before the relevant permits expire, but in other countries it is just one month. On the whole, the time taken to consider the documents and to obtain the permits is not stipulated at all, and neither is responsibility for delays. I am referring here not to new routes but to extensions to the term of existing routes. The actions of officials are impossible to predict. Here is a relevant example: An application for an extension of the permit to operate on a route is submitted well in advance to the responsible authority (I shall not specify which state). Within a month we enquire by telephone about the progress of the application. They look for our documents for several days, sending us to one employee and then to another. It then turns out that one of them is either ill or on leave, on a business trip or at a conference. Within a few weeks the documents are found but it turns out that this organisation's structure has changed and they have forwarded the documents to another subdivision. By the end of the month they inform us that our application has been granted and ask us to send them the Ukrainian permits for our partner and then we will be sent our permits by them. At the relevant Ukrainian agency we are told the same thing, i.e. that the permits for our foreign partner will be sent after they have received our company's permit from the responsible foreign authority. After numerous calls the relevant authorities in the two countries agree to send the permits without waiting to receive the relevant documents from the other side. I do not know why but the letter with our permits always takes at least 3-5 weeks to arrive. Finally, we receive the permits. However, the issue of transit countries also has to be dealt with. Without copies of the new permits, transit documents cannot be issued. An application is sent through the Ukrainian ministry for the new transit permits. In transit countries the documents are examined for a month on average. Here too the officials concerned, like anyone else, can be on sick leave, away on business trips or at conferences, and so on. And often there are several transit countries to deal with. Also, in these countries we do not have a partner who can try to ensure that the application is examined speedily. This simply compounds our difficulties. We have already been struggling to extend the permits for the past three to five months. By now, the existing permits are about to expire, but the trips have to continue because we are operating a regular service. What are we to do with our passengers? It seems that all the outstanding matters have been resolved and the countries have issued the required permits, but the post fails once again. Sometimes it is possible to agree on obtaining a single permit while the documents are on their way to Ukraine. This depends, however, on the goodwill and powers of the same official, because technically this is difficult to carry out, since one authority issues the permit while a completely different agency monitors the existence of such a permit. Unfortunately, ministerial officials from various countries consider that they have performed their task fully once they have sent the letter or application to the relevant authority in the other country. They are not interested in what happens to our documents later on. Four years ago, there was a case where one Ukrainian transport operator from Lviv was unable to obtain a transit permit for Germany for six months. It turned out later that the permit was drawn up promptly and was then kept for six months awaiting payment. The transport operator did not know about this. The approach to the issue of protecting the interests of transport operators varies from one country to another. In my view, Germany is a model for its correct handling of such matters. Before a service is started or amended in that country the views of all interested transport operators are considered. Consequently, the existing route network is protected from the possible negative impact of the introduction of a new route or - to put it bluntly - a newcomer pinching passengers from existing routes. For several years I have been drawing the attention of both our Ministry and our Association of Transport Operators to the need to create a similar system to protect our interests. This year, a compulsory expert appraisal of applications to open, amend, or extend international routes is being conducted in Ukraine. This examination is being carried out correctly, with virtually all relevant factors being taken into account. The appraisal's findings will not be binding, however, on the final decision taken. The Ministry of Transport may or may not take the appraisal's results into account. However, this is a step forward because there has been no protection whatsoever to date. Here is an example: A few years ago our company started a new route. Since the introduction of this route came about at our own initiative, we had to "roll it out". I think that those present will understand what I mean by this term. Our partner had enough work on their existing routes in Europe and the trips were carried out by Ukrainian buses only, with our partner organising the sale of tickets. From trip to trip the number of passengers gradually increased. We conducted a wide-scale advertising campaign and within a few months the route was no longer operating at a loss and we increased the number of trips. Suddenly, we found out that another two bus services had been launched from Ukraine. Moreover, both of them followed our existing route exactly, with the very same stops. However strange it may seem, the foreign partner involved turned out to be our partner. As a result, there were twice as many buses operating on the route as the passenger numbers required, with the buses only 10-40 percent full. Such competition resulted in a slump in ticket prices, ticket dumping. Who benefited from this? The passengers. Who did not lose out either? Our partner, because it sold its tickets. But who were the losers? The Ukrainian bus operators. In response to our complaints to the Ukrainian Ministry of Transport we were told that since "your partner" agreed to introduce another two services and the responsible agency in their country did not object, there were probably enough potential passengers for everyone. Moreover, as you and your partner are operating a joint service, you can defend it together, they told us. However, our partner has been unable to explain to us why it took this action and what was the logic behind it. Within less than a year of competition we had won. But at what price? And where are the guarantees that we shall not find ourselves in the same situation at some future date, and again for inexplicable reasons? The primary problem facing Ukrainian transport operators at present is obtaining visas for drivers. Germany has reduced the period for which its visas are valid. In addition, there has been a sharp increase in the number of visa rejections for drivers who had been granted one-year visas over the past 5-7 years. Reasons are never given for these rejections. As a result, we are experiencing very serious problems in ensuring compliance with regulations governing the work of transport vehicle crews. For three years we have not been able to arrange visas for drivers who work on one particular international route. Our foreign partner cannot find the legal grounds for visas to be issued to drivers who operate on our joint route. In our view, this is wrong. The consulate of that country issues visas to Ukrainian citizens in Kiev every day, including to lorry drivers, and finds the legal grounds to do so. The ticket bought by a passenger is a form of contract with the transport operator for the execution of the trip. There are cases where claims can arise between the parties to this contract. The way that such claims are resolved varies from country to country. Here are some examples of the most frequent conflict situations:
If there were a uniform procedure for settling such disputes in all countries through which a regular service is operated, this would greatly improve the relationship between the transport operator and the passenger. It would be possible to make a more extensive list of the problems facing transport operators, but we are more interested in a mechanism for tackling these problems. The meetings of the Joint Commissions help to resolve them to some degree but their options are limited. The decisions adopted by the Joint Commissions do not have the legal force which agreements enjoy. Agreements are signed by governments and their provisions are binding on all ministries and departments. Therefore, if an agreement were to stipulate that the partners in the transport operation are obliged to provide each other with visa support, the problem of visas for that country would not arise for us. The volume of traffic between Ukraine and European countries is directly dependent upon the issuing of visas to Ukrainian citizens. A sharp deterioration in this situation has meant that this year, for the very first time in the history of our transport services, the number of foreigners using our buses has exceeded the number of Ukrainian passengers. Conversely, may I remind you that this year Ukraine dropped its visa requirement for EU citizens. Now, when visas are issued, what is known as the "temporary stay corridor" has been drastically reduced, and cases where visa holders exceed the duration of their visas have increased. When this happens to a passenger the checking authorities at the border carry out an investigation, draw up a report, and so on. Moreover, the whole bus is delayed because of one person. Less than a week ago such a case led to a delay of 4.5 hours. In my view, the offender must be answerable for his actions, but in practice both the transport operator and the passengers suffer. The monitoring authorities do not wish to remove the offender and allow the bus to continue its journey in accordance with the approved timetable. They do not wish to burden themselves with the problem of how the offender is to be conveyed to his destination, and therefore they delay the whole bus. For transport operators there is one document which places them under an obligation to transport the passenger, namely a ticket. However, if a specific passenger experiences a problem because of some sort of infringement of passport regulations, then this should be the passenger's problem alone. Unscheduled delays for buses at the border disrupt the timetable and the requirements governing the time that drivers are permitted to spend at the wheel. The consequences fall squarely at the feet of the transport operator. The monitoring authorities assume no responsibility for this whatsoever. This means that the problem is not resolved but is kept very much alive. For this reason, the representatives of the monitoring agencies can afford to start the checking and clearance of a bus which has arrived at the border whenever they want to. These are not isolated cases. The agreements always mention the service timetables which have to be observed. In practice, ninety-nine percent of bus and coach delays are linked to waiting times at borders. Тourist coaches and buses operating regular services are processed in a general queue. During specific periods of the year, such a queue, on the Austrian border for example, can consist of more than a hundred buses. How can we keep to a timetable in such circumstances? Buses on scheduled services must have a preferential right to border clearance. The problems listed could be tackled if they were specified in intergovernmental agreements on international road transport. Unfortunately, it is virtually impossible to amend such a document, because after the agreement has been ratified by parliament it has legal status, and only parliament can amend a law. If a transport operator wishes to resolve a problem it is experiencing, first of all it has to convince its Ministry of Transport, and sometimes a whole number of other ministries, of the need to resolve this problem. This issue must then be examined by the government and parliament. Since this is a bilateral agreement, there is another party to the agreement with its own procedures. Governmental authorities are concerned about the state as a whole and almost always do not listen to the transport operator, or do not consider the latter's problem as such. There are more important matters to be dealt with. It is therefore virtually impossible to harmonise all bilateral agreements. In my view, they should be left alone and efforts should be directed at preparing special multilateral agreements on the organisation and execution of regular international transport services by bus, as has already been achieved with non-regular transport operations. Such agreements must contain clear and unequivocal provisions on matters concerning:
This is not a complete list of issues, of course, although I believe that it represents a step in the right direction.
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