EUROPEAN COMMISSION DIRECTORATE–GENERAL ENERGY AND TRANSPORT DIRECTORATE E – INLAND TRANSPORT

COMMON APPLICATION OF TRAFFIC VIOLATIONS ENFORCEMENT (CAPTIVE)

FINAL REPORT

NOVEMBER 2006 CAPTIVE - Common Application of Traffic Violations Final Report

DOCUMENT CONTROL

Client: European Commission Directorate–General Energy and Transport Directorate E – Inland Transport

Project: CAPTIVE - Common Application of Traffic Violations M4-2913

Report: Final Report

Date of Issue: November 2006

Originator: Colin Wilson with Charmaine Coutinho, Leo van den Berg, Ricard Martinez, Philipp Jordi, Gildas Baudez, Miroslav Svitek, Eric McRae, Jakub Rajnoch, Bertrand Paillard, Mick Brosnan, Jim Hammond, Andy Rooke, Susana Diaz, Jan Malenstein, Idske Dijkstra

Reviewed by: Colin Wilson

Authorised by: Colin Wilson

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CAPTIVE - Common Application of Traffic Violations Final Report

TABLE OF CONTENTS

EXECUTIVE SUMMARY 1 1 INTRODUCTION 5 1.1 Background 5 1.2 Imposing penalties for violations of road traffic laws 7 1.3 Enforcement of penalties 8 1.4 The scale of the non-resident violator ‘problem’ 10 1.5 Why address the problem of non-resident violators now? 11 1.6 Cross-border enforcement 12 1.7 CAPTIVE – Taking a holistic view on cross-border enforcement 12 1.8 This report 13 1.9 Contacts 14 2 CURRENT STATUS OF CROSS-BORDER ENFORCEMENT IN THE EUROPEAN UNION 15 2.1 Introduction 15 2.2 Member States’ perspectives on cross-border enforcement 15 2.3 Characteristics of agreements 16 2.4 Existing bi- and multi-lateral approaches to cross-border enforcement 17 2.5 European legislation used as a basis for existing cross-border cooperation 20 2.6 Other relevant legislation 22 2.7 Other cross-border enforcement practices 25 3 RESEARCH AND IMPLEMENTATION ACTIVITIES 28 3.1 Introduction 28 3.2 Establishing the need for cross-border enforcement 29 3.3 Establishing the principles of cross-border enforcement 30 3.4 Potential tools to support cross-border enforcement 31 3.5 Road traffic rules and regulations 32 3.6 Impacts, attitudes and responses to road traffic rules 33 3.7 Related initiatives 33 4 BARRIERS TO EFFECTIVE CROSS-BORDER ENFORCEMENT IN EUROPE 35 4.1 Introduction 35 4.2 Legal barriers 35 4.3 Organisational barriers 38 4.4 Operational barriers 39 4.5 Miscellaneous barriers 41 4.6 Issues specific to non-financial penalties for further analysis 41 5 ESTABLISHING EFFECTIVE CROSS-BORDER ENFORCEMENT IN EUROPE 46 5.1 Introduction 46 5.2 Aims of cross-border enforcement in Europe 46 5.3 Cooperation and compatibility 47 5.4 Origins of a common approach 47

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5.5 A ‘common approach’ 48 6 A PLAN TO IMPLEMENT THE COMMON APPROACH 51 6.1 The need for an Implementation Plan 51 6.2 Realities of implementation 52 7 CAPTIVE IMPLEMENTATION PLAN - PREPARATORY AND SUPPORT ACTIONS 54 7.1 Introduction 54 7.2 Step 1 -Coordination and management 54 7.3 Step 2 - Stakeholder participation 56 7.4 Step 3 - Political support 58 8 CAPTIVE IMPLEMENTATION PLAN – DEFINING AND AGREEING THE COMMON APPROACH60 8.1 Introduction 60 8.2 Step 4 - Agreeing the vision for cross-border enforcement 60 8.3 Step 5 - Agreeing the common approach to cross-border enforcement 61 8.4 Step 6 – Defining the common operational procedures 62 8.5 Step 7 – Defining requirements 63 9 CAPTIVE IMPLEMENTATION PLAN - ESTABLISHING THE LEGAL BASIS 65 9.1 Introduction 65 9.2 Step 8 – Establishing the legal basis the common approach 65 9.3 Achieving a common approach in an operational environment 68 9.4 Interim steps 73 10 CAPTIVE IMPLEMENTATION PLAN –STANDARDS AND TOOLS 77 10.1 Introduction 77 10.2 Step 9 – Supporting standards and tools 77 11 CAPTIVE IMPLEMENTATION PLAN - IMPLEMENTING, OPERATING AND MONITORING THE COMMON APPROACH 82 11.1 Introduction 82 11.2 Step 10 - Implementing and operating the common approach 82 11.3 Step 11 - Monitoring and feedback 83 12 CONSOLIDATED FIVE YEAR IMPLEMENTATION PLAN 84 12.1 Introduction 84 12.2 Preparatory and support actions 84 12.3 Defining and agreeing the common approach 86 12.4 Establishing a legal basis for the common approach 88 12.5 Defining and developing supporting standards and tools 88 12.6 Implementing, operating and monitoring the common approach 89 13 SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS 92 13.1 Addressing non-resident violators today 92 13.2 The way forward – cooperation and coordination 92 13.3 A plan for implementation 92 13.4 Summary of the CAPTIVE recommendations 93

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EXECUTIVE SUMMARY

The importance of cross-border enforcement

Improving compliance with road traffic laws is a fundamental part any EU Member States’ road safety strategy and is a priority issue for the European Commission as it seeks to achieve its ambitious target of halving the number of people killed on roads in Europe by 20101. Where road users fail to comply with road traffic laws, Member States’ national legislation allows them to apply a range of financial and non-financial penalties to deter non-compliance in the future.

Historically, Member States’ procedures for setting, imposing and enforcing these penalties have been designed to deal with violators who reside in the State where they commit the road traffic violation. However, since the foundation of the European Union on 1 May 1993, there has been an increase in cross-border traffic and as an inevitable consequence, an increase in the number of road traffic violations committed by so-called ‘non-resident violators’ who are:

• natural persons who do not reside in the Member State where they committed the violation, whose vehicle is not registered in the Member State where they committed the violation or whose driving licence is not issued in the Member State where they committed the violation; or

• legal persons whose licence to operate a vehicle is not issued by the Member State where the violation was committed.

Implementing the same enforcement regime used for resident violators raises many legal, organisational, procedural and penalty-specific issues which in many cases, are difficult to successfully address. As a consequence, penalties are rarely imposed and enforced on non-resident violators. This is in complete contrast to the ‘principle’ of non-discrimination as enshrined in Article 12 of the EC Treaty.

Regional approaches

With a few notable exceptions, cross-border enforcement has historically had a low priority on States’ political agendas. There have, however, been a few attempts to establish bi- or multi-lateral agreements between countries to assist in the imposition and enforcement of penalties on non- resident violators. These agreements have typically originated where a country has a high proportion of non-resident violators from another, often neighbouring country, or where due to its geographic situation, a country’s traffic composition includes a significant proportion of transiting traffic.

1 White Paper – European Transport Policy for 2010: Time to Decide, Part 3, European Commission, September 2001

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A common approach to cross-border enforcement

Building on best practice from these regional approaches, CAPTIVE was initiated to identify the steps that could be taken at a European level to implement a pan-EU approach to cross-border enforcement involving all Member States. The project’s primary research findings echo those from earlier Commission research projects such as VERA and VERA2 - the basis for implementing effective cross-border enforcement across the EU has to be:

consistent, effective and structured cross-border cooperation between Member States.

Establishing the degree of consistency and structure necessary will require States to adopt a ‘common approach’ to cross-border enforcement. This approach would define which enforcement processes need to be undertaken in a common way and in accordance with common operational standards. It would not seek to prescribe or harmonise States’ own enforcement processes – rather, the common approach seeks to ensure that States can easily cooperate with each other for the purposes of cross-border enforcement as and when necessary.

CAPTIVE has prepared an initial view of such a common approach. It comprises three elements:

• common operational procedures that have to be carried out the same way in each Member State and which facilitate State-State cooperation

• transitional elements which will allow State’s national enforcement procedures to work seamlessly with the common operational procedures

• common standards of operation which specify the minimum standard to which the common operational procedures must be performed by all States.

CAPTIVE considers this common approach to be fundamental to establishing effective cross-border enforcement across the EU. It has therefore used it as the basis for its formal definition of cross- border enforcement which is:

“The application of operational procedures and standards to allow the imposition and enforcement of penalties on violators2 of road traffic laws who do not reside in the State where they committed the violation, whose vehicle is not registered in the State where the violation was committed or whose driving/operating licence is not issued by the State where the violation was committed3”

A plan for implementation

Implementing a common approach to cross-border enforcement across the EU-25 will be a major task, the scale of which should not be underestimated. It will require multiple actions undertaken at different levels (ie pan-EU, regional, national and local) by different stakeholders and with a range of different timescales. CAPTIVE has therefore defined a five-year Implementation Plan which identifies

2 For the purposes of CAPTIVE, ‘violator’ is taken to mean the same as ‘offender’ 3 Words in italics have been changed compared with VERA2 version

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CAPTIVE - Common Application of Traffic Violations Final Report the actions necessary to implement the common approach and the supporting management and coordination structure necessary to ensure consistent delivery. The CAPTIVE Implementation Plan comprises actions in the following five areas:

Preparatory and support actions

These provide a management and coordination structure for the delivery of the Plan across the EU-25 and within the Commission. Actions include promoting inter-DG and Member State- coordination and undertaking benchmarking activities. They also include facilitating the involvement of stakeholders in delivering the Plan including the establishment of a Core Stakeholder Group who will play a pivotal role in the development of cross-border enforcement across the EU-25. These actions also include building political support for the actions being taken.

Defining and agreeing the common approach

All aspects of the common approach as proposed by CAPTIVE need to be reviewed in detail and verified as the most suitable way to proceed. This includes the need for a common approach, a vision for how it should impact cross-border cooperation through to a detailed definition of common procedures and operational standards.

Providing a legal framework for the common approach

A wide variety of European legislation already exists which could be used to support cross-border enforcement in the future. Research carried out as part of CAPTIVE has shown that if fully implemented and adopted by all Member States, the Framework Decision on the Application of the Principle of Mutual Recognition to Financial Penalties (2005), the European Convention on Driving Disqualifications (1998) and the Third Directive on Driving Licences (2006) would provide a pan-EU legal basis for just over half of the procedures included in the common approach.

However, the research also shows that a new European Parliament and Council Directive under the first pillar will be required to implement the remaining elements of the common approach which do not currently have a legal basis at a European level. These elements primarily relate to cross-border cooperation which ultimately enable a penalty can be set by an authorised body in the State where the violation was committed.

The research recognises that this package of legislation will take some time to implement in all States. Therefore, a series of interim steps have also been proposed which facilitate a more limited degree of cross-border cooperation in advance of the full legislative package being implemented.

Defining and developing standards and tools to support the common approach

Common technical standards and tools which support the implementation and operation of different aspects of cross-border enforcement are necessary to ensure consistent implementation and operation of the common approach and as a means to provide operational cooperation between States. They will provide a minimum degree of automation to the processing of non-resident violators

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CAPTIVE - Common Application of Traffic Violations Final Report and help manage ‘additional’ workload on operational personnel. They will also enforce the data management and audit controls necessary where processing and penalty handling are governed by requirements laid down in national legislation.

The development of standards and tools must build on what has already been achieved through earlier projects such as VERA and VERA2, on supporting networks already proposed by the Commission such as RESPER and on systems which are already operational such as EUCARIS.

Implementing, operating and monitoring the common approach in each State

The common approach will only be fully effective once the actions included in the previous four areas of the Implementation Plan have been successfully completed by the Commission and Member States as necessary. National plans for implementation need to be prepared to reflect these activities including the time it will take to implement the legislative package in each State. National plans need to be consolidated into a EU-wide plan which will subsequently be used as a benchmark against which progress will be measured. Once operational, the effectiveness of the common approach must be monitored on a regular basis.

Conclusion

If a common approach to cross-border enforcement can be implemented across the EU-25, the expectation is that road users will be assured of fair and equal treatment. The deterrent effect of penalties imposed through the enforcement process will therefore be applicable to all drivers regardless of where they reside, where their vehicle is registered or which State issued their driving/operating licence.

As a consequence, the imposition and enforcement of penalties on non-resident violators of road traffic laws will start achieving its theoretical contribution to improvements in road safety across the EU and will contribute to reducing the number of road deaths in the EU to the 25,000 needed to achieve the Commission’s 2001 White Paper target of a 50% reduction4.

4 Road Safety Action Plan Mid-Term Review, European Commission, p2, 22 February 2006

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1 INTRODUCTION

1.1 Background

In 2000, there were over 40,000 people killed and 1.7 million people injured on roads in the EU-155. Statistics also show that in 2001, there were 50,000 people killed on roads in the countries that now make up the EU-256.

In order to address this unacceptable situation, the European Commission’s 2001 White Paper on Transport Policy set an ambitious target of halving the number of people killed by 2010. This target was reaffirmed after EU enlargement in 2004. By 2005, a 17.5% reduction in the number of road deaths had been achieved. At this rate, it has been estimated that the number of road deaths in 2010 will be around 32,500 rather than the 25,000 needed to achieve the 50% reduction target7.

Improving compliance with road traffic laws is seen as one of the main ways of achieving this target8. Strategies to improve compliance with road traffic laws typically involve three aspects: driver education, road engineering and enforcement. When education and engineering do not have the desired impact on compliance, enforcement becomes a necessary sanction. The deterrent effect of penalties imposed through the enforcement process aims to change driver behaviour and ultimately, achieve a greater degree of compliance.

Penalties for road traffic offences

In the European Union, penalties for violating road traffic rules can be characterised as being either financial or non-financial penalties as shown in Figure 1.

Figure 1 European Union penalty regime

Financial penalties

Financial penalties require violators9 to pay a sum of money to the authorised agency or

5 White Paper – European Transport Policy for 2010: Time to Decide, Part 3, European Commission, September 2001 6 Road Safety Action Plan Mid-Term Review, European Commission, p2, 22 February 2006 7 Road Safety Action Plan Mid-Term Review, European Commission, p2, 22 February 2006 8 Road Safety Action Plan Mid-Term Review, European Commission, Section 3.1, 22 February 2006 9 For the purposes of CAPTIVE and depending on the circumstances and the nature of the offence, a violator can be one

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operator as a consequence of their violating road traffic law. While traditional financial penalties fixed by a court continue to be widely used, there is an increasing use of ‘fixed’ financial penalties for non-serious road traffic offences. As the amount payable is usually fixed by law, there is no requirement for the violator to attend court. This helps keep enforcement processes manageable and to limit the workload on courts.

Non-financial penalties

Based on earlier Commission research10 and on input from the enforcement community, the primary non-financial penalties imposed by courts or other statutory bodies for road traffic offences are defined as:

• custody – committing a violator to prison for a specified period and under a specified set of conditions

• disqualification from driving and driving licence withdrawals - the physical removal of a person’s driving licence for a specified period of time in order to prevent the holder from driving a vehicle of the type(s) covered by that licence

• points-related penalties (known as penalty points or demerit points) - the addition (or removal) of points to (or from) a person’s driving licence if convicted of typically less serious road traffic offences. If a driver accumulates (or loses) a specified number of points within a specified period, they are typically disqualified from driving for a specified period. The period over which points remain valid and can count towards a disqualification varies

• disqualification from operating a vehicle - similar to disqualification from driving but applies to vehicle operators (for example commercial vehicle fleets) whose licence to operate may be withdrawn for a specified period of time

• training and rehabilitation courses – formal education and training courses usually focussing on changing drivers’ attitudes and responses towards specific aspects of driving (for example driving within the speed limit). These courses are typically offered as an alternative penalty (or in conjunction with reduced form of another penalty). The violator’s attendance and satisfactory completion of the course is compulsory.

• community service – penalties which require that during non-working hours, violators are required to perform unpaid work for the benefit of the community. This work is usually supervised by an official employed by, or acting on behalf of a duly authorised agency (such as a national probation service, etc).

• vehicle confiscation – the formal confiscation of a driver’s vehicle by an authorised agency or operator until a specified action is carried out (for example, a financial penalty

or more of: • the vehicle driver • the vehicle owner • the vehicle operator 10 Comparative Study of Road Traffic Rules and Corresponding Enforcement Actions in the Member States of the European Union, Final Report, TiS.pt on behalf of the European Commission

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is paid).

• restorative justice – penalties in which the victim has the opportunity to express to the violator, the full impact of the crime upon their lives, to receive answers to any lingering questions about the incident, and to participate in holding the offender accountable for his or her actions. Victims sometimes receive some type of restitution from the violator.

Other types of penalties

It is also important to note the existence of other types of penalties such as financial/non- financial hybrid penalties or what could be called ‘consequential penalties’ as follows:

• Hybrid penalties - in some Member States such as the UK, violators can be required to pay for a driver education and awareness course. Payment for the course is considered to be a financial penalty and satisfactory completion of the course is considered to be a non-financial penalty (as indicated above)

• Consequential penalties – These are typically imposed on the violator by non-statutory bodies as a ‘consequence’ of being convicted of a driving offence. These are discussed further below.

1.2 Imposing penalties for violations of road traffic laws

Member States use financial and non-financial penalties for both criminal11 and civil/administrative12 road traffic offences, in different combinations and in different ways. The Comparative Study of Road Traffic Rules and Corresponding Enforcement Actions13 provided an overview of how these penalties are typically used across Europe.

It is important to note that there are some key temporal and consequential relationship differences between financial and non-financial penalties that have a direct impact on how they are imposed and how effective they are. These include:

• temporal differences - Once a violator has paid a financial penalty, the penalty has effectively been executed and no further actions by the violator or the State are usually required. In contrast, the majority of the non-financial penalties identified above are imposed for a specified period (for example, a violator is disqualified from driving for a specified period, a violator is required to complete a specified number of days of community service, etc)14. The effectiveness of these non-financial penalties needs to be maintained throughout the specified period

• differences in consequential relationships – although financial penalties are used in

11 Criminal law is concerned with the relationship between the individual and the general public (often as embodied by the state) 12 Civil law regulates relationships amongst persons and organisations 13 Comparative Study of Road Traffic Rules and Corresponding Enforcement Actions in the Member States of the European Union, Final Report, TiS.pt on behalf of the European Commission 14 There are some notable exceptions to this such as the use of Medical Psychological Test (MPU) in Germany where drivers convicted of drink-driving offences or those who have accumulated too many penalty points can be required to take the test and prevented from driving until they pass

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conjunction with certain non-financial penalties for road traffic offences (points-related penalties for example), used in isolation, they rarely have further consequences. As mentioned above, the imposition of some non-financial penalties can have wider consequences for the violator. For example:

− vehicle insurers typically view drivers who have been convicted of a road traffic offence as more of a risk and often impose higher insurance premiums on them. The insurance premiums can be considerably more expensive than any financial penalty paid at the time of conviction and as a consequence, often act as the real deterrent

− in some cases, a citizen’s employment may be dependent on having a clean driving licence

− under most Member States’ legislation, an employer has a duty of care to ensure that any employee using an employer’s vehicle (or insured under the employer’s insurance scheme) does not present a danger to other citizens.

1.3 Enforcement of penalties

National legislation typically governs the way in which penalties are set, imposed and enforced on violators of road traffic rules in each Member State as shown in Figure 2.

Authorised body/agency ‘imposes’ penalty on the violator (eg fine is paid, driving licence is withdrawn, etc)

Set Impose Enforce penalty penalty penalty

Authorised body/agency Authorised bodies/agencies (eg a court) ‘sets’ the ensure that violator continues to penalty in accordance with be subject to restrictions of national law penalty for specified period

Figure 2 Setting, imposing and enforcing penalties for road traffic offences

Legislation of this kind typically deals well with violators who are resident in the State in which the violation took place (known as the ‘State of Offence’ or ‘SOO’) or whose vehicle is registered in that State.

The procedures which constitute the operational implementation of this kind of national legislation are often referred to as the ‘enforcement ‘chain’. Figure 3 is a generic representation of the simplest interpretation of the enforcement chain showing how violators who are resident in the SOO are dealt with.

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Figure 3 Generalised view of enforcement chain (resident violators only)15

Since the foundation of the European Union on 1 May 1993, opportunities for mobility have significantly increased for EU citizens. This increased mobility has had many positive effects on citizens and on society.

However, from an enforcement perspective, the growth in cross-border traffic throughout Europe has meant that agencies have to deal with an increasing number of road traffic violations committed by drivers of vehicles registered in other States or with driving licences issued by other States (known as the ‘State of Residence’ or ‘SOR’). This has significantly complicated States’ enforcement regimes.

For the purposes of CAPTIVE and the cross-border enforcement of road traffic rules, a ‘non-resident violator’ is defined as being either:

• a natural person who does not reside in the Member State where they committed the violation

• a natural person whose vehicle is not registered in the Member State where they committed the violation

15 This figure is used solely for the purposes describing and analysing different aspects of cross-border enforcement. It should be recognised that this generic representation is not intended to reflect any specific enforcement application or any Member States’ implementation of the enforcement chain. It should also be recognised that while this generic representation includes the enforcement procedures typically adopted in most Member States, there will, by definition, be State-specific procedures which are not included. Note also that Step 15 is omitted for clarity as it is not relevant to the enforcement of penalties on resident violators.

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• a natural person whose driving licence is not issued in the Member State where they committed the violation

• a legal person whose licence to operate a vehicle is not issued by the Member State where the violation was committed.

In these circumstances, implementing the same enforcement regime used for residents raises many legal, organisational and procedural issues which in many cases, are difficult to successfully address. As a consequence, penalties are rarely enforced on non-residents. This situation is in complete contrast to the principles of fair and consistent treatment of all European citizens and of proportionality as enshrined in the Treaty of European Union16.

1.4 The scale of the non-resident violator ‘problem’

Accurate figures on number of non-resident violators are hard to find - historically, many enforcement agencies have often discarded records of violations attributable to non-residents due to the complexities of processing them. However, the following gives some indication of the scale of the problem and how this varies between States:

• In France, in the first six months of operation of the national speed enforcement programme, 140,000 of a total of 500,000 certified violations were committed by non-residents17

• In London, the London Safety Camera Partnership estimate that there are between 300-500 non-resident violators every month. In total, it is estimated that around 1.2% of all traffic offences on London Roads are committed by non-resident drivers18

• between 100,000 and 150 000 non-residents use the Luxembourg road network every day. They account for around 30% of road traffic offences and around 23% of fatal accidents

• 2.5% of all traffic offences detected in Denmark are caused by non-resident drivers (of a total of around 350,000) offences. Around 50% of these are from other Nordic countries19.

• Since 1999 in Catalonia. automated enforcement detected 12,392 violations (approximately 8% of the total detected) committed by drivers in vehicles registered outside Spain20

• The Road Safety Campaign, organised by the Salzburg Forum States (Slovakia, Czech Republic, Hungary, Poland, Austria and Slovenia) noted that in a two-week period in June 2005, approximately 9% of all traffic violations were committed by a non-resident drivers. A similar campaign run by the same organisation in July 2005 noted that around 23% of traffic offences were committed by non-resident drivers21.

16 Treaty On European Union, Official Journal C 191, 29 July 1992 17 Impact of automated speed enforcement programme in France, Annie Canel, VERA2 WP3/4/6 Workshop, Lille, 20-21 April 2004 18 www.lcsp.org.uk and LCSP members 2005 19 Leif Sorenson, Deputy Chief Superintendent, The Danish National Police, 2005 20 Servei Català de Trànsit. 2005 21 Police Force Presidium, Slovak Republic, from Salzburg Forum, 2005

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1.5 Why address the problem of non-resident violators now?

It is becoming increasingly apparent that the enforcement landscape is changing across Europe and there is a growing urgency to address the problem of non-resident violators. Some of the primary reasons for this changing environment are highlighted below.

Increasing cross-border traffic

As discussed in Section 1, since the foundation of the European Union on 1 May 1993, opportunities for easy cross-border travel have significantly increased for EU citizens. With the addition of thirteen new Member States since the Treaty was originally signed, these mobility opportunities are now available to over 450 million people.

Increasing numbers of non-resident violators

Enforcement agencies across Europe are being faced with an increasing number of non- resident violators. While the origins in this increase lie in the overall growth in cross-border traffic, greater use of automated enforcement systems is tending to give a truer picture of the number of non-resident violations.

On-the-spot enforcement is carried out at the discretion of the enforcement officer at the scene – if a vehicle from outside the SOO is not stopped, no record of any violation is made. Automated enforcement systems do not discriminate between resident and non-residents at the point of detection. A record is made of every violator regardless of where the vehicle is registered. Even where records of non-resident violations are subsequently discarded without any processing, statistical evidence of that violation remains.

Growing use of vehicle registrations for different applications

The exchange of vehicle, vehicle owner/keeper and driver registration information is a key component of the cross-border enforcement of non-resident violators. The same information exchanges are increasingly becoming important elements of other cross-border applications including border controls, customs and security applications. As a consequence, there is growing interest in accessing this information and in developing robust and secure tools and procedures to allow this to take place.

Growing public awareness

In a number of Member States, the media has long retained an interest in the enforcement of penalties imposed for road traffic violations. More recently, sections of the media in France and the UK in particular have begun to highlight the inconsistencies in the way that resident violators and non-resident violators are treated. As a consequence, public interest in this topic is growing.

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Attitudes to enforcement and access to information

As noted above, enforcement can be a contentious subject amongst members of the public. Individuals opposed to any expansion of enforcement are often very vociferous and in some cases are using media such as the internet to express their point of view to others. In States such as Germany, The Netherlands, United Kingdom and Italy for example, there are a number of web sites which explain in detail how individuals can contest notifications from enforcement agencies. These often cite the legal ‘loop holes’ relating to non-resident violators and highlight these as grounds for violators to avoid prosecution.

1.6 Cross-border enforcement

Cross-border enforcement is the term applied to the processes involved in setting, imposing and enforcing penalties on non-resident violators. For the purposes of CAPTIVE, cross-border enforcement is defined as:

“the procedures and standards involved in setting, imposing and enforcing penalties on violators22 of road traffic laws who do not reside in the State where they committed the violation, whose vehicle is not registered in the State where the violation was committed or whose driving/operating licence is not issued by the State where the violation was committed23”

This is an enhanced version of the definition used by the VERA2 project.

1.7 CAPTIVE – Taking a holistic view on cross-border enforcement

The overall objective of CAPTIVE was:

To formulate policy-oriented recommendations and proposals for measures to be taken at a European level to facilitate the implementation of effective cross-border enforcement of road traffic laws.

The project was initiated to review the progress made on cross-border enforcement of road traffic laws in Europe and had a clear focus on non-financial penalties. The review included progress made in the areas of:

• research

• policy

• treaties and legislation

• multi-/bi-lateral agreements between States.

22 For the purposes of CAPTIVE, ‘violator’ is taken to mean the same as ‘offender’ 23 Words in italics have been changed compared with VERA2 version

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Based on this review of progress, CAPTIVE identified the barriers that remained to be addressed if cross-border enforcement was to be implemented on an effective and consistent basis across Europe. Finally, CAPTIVE was tasked with preparing a plan of action to address these barriers.

The four-stage approach that was adopted by the project to achieve this objective is shown in Figure 4.

Figure 4 Four-stage approach to CAPTIVE

CAPTIVE has addressed cross-border enforcement in a holistic way. Although there are some important differences, many of the early activities in the enforcement chain are carried out in a broadly similar manner regardless of whether financial or non-financial penalties are to be imposed for the offence or whether the offence is criminal or civil/administrative in nature. As these initial activities currently present some of the most significant barriers to effective cross- border enforcement, there is a need to address them in a common way and to ensure common solutions where possible while respecting the inherent differences in penalties and offences.

CAPTIVE has focused its attention on the cross-border enforcement of penalties for criminal offences although as stated above, many of the issues covered also apply to the imposition and enforcement of penalties for civil/administrative offences. Annex V presents additional issues which are specific to the cross-border enforcement of penalties for civil/administrative offences.

1.8 This report

This report documents the results of CAPTIVE. Following this introductory section:

• Section 2 presents the current status of cross-border enforcement across the EU

• Section 3 describes the principal research and development activities relevant to cross- border enforcement

• Section 4 examines the barriers to effective cross-border enforcement in Europe.

• Section 5 describes how implementing new enforcement processes and increasing the consistency between existing enforcement procedures could form the basis for a common EU-wide approach to cross-border enforcement

• A plan for implementing a common approach is presented in Section 6

• Sections 7, 8, 9, 10 and 11 describe in more detail, different aspects of this implementation plan

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• Section 12 presents a consolidated view of the implementation plan

• Finally, Section 13 presents a summary of the project’s conclusions and recommendations.

1.9 Contacts

For additional information on CAPTIVE, please contact:

Colin Wilson CAPTIVE Coordinator [email protected]

The full set of project results and recommendations is available at http://www.captiveproject.org

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2 CURRENT STATUS OF CROSS-BORDER ENFORCEMENT IN THE EUROPEAN UNION

2.1 Introduction

Historically, the cross-border enforcement of penalties for violations of road traffic law has had a low profile on many States’ political agendas. Although its profile has begun to increase over the last five or so years, States’ operational perspectives on cross-border enforcement remain mixed.

This section examines the current status of cross-border enforcement across the European Union. It looks at Member States’ perspectives on the importance of cross-border enforcement and how some of them have responded to local, national or regional needs and implemented some form of cross-border cooperation with regard to the enforcement of road traffic laws.

2.2 Member States’ perspectives on cross-border enforcement

Historically, the cross-border enforcement of penalties for violations of road traffic law has had a low profile on many States’ political agendas. The consequence of this has been that:

• there has been no concerted push to establish a pan-European approach to cross-border enforcement

• in many States, non-resident violators committing relatively minor misdemeanours are not stopped. Where they are stopped, only on-the-spot penalties can be guaranteed to be effective. Where automated enforcement is used, records are typically discarded without further processing as soon as it is apparent that the vehicle involved is registered in another State

• thanks in part to the media, the message that if you drive your vehicle through another State and violate the road traffic law, you can “get away with it” is becoming more widely known

• where records exist, it is clear that in many cases, the number of non-resident violators now accounts for a significant proportion of the total number of violators. With increases in mobility and the enlargement of the EU, these figures are likely to continue to increase

Although this general antipathy towards cross-border enforcement has prevailed across the EU, there have been attempts to establish bi- or multi-lateral agreements between countries to assist in the imposition and enforcement of penalties on non-resident violators. These agreements have typically originated where a country has a high proportion of non-resident violators from another, often neighbouring country, or where due to its geographic situation, a country’s traffic composition includes a significant proportion of transiting traffic. There are also a few examples of local cross-border enforcement agreements operating between specific

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cities or regions either side of a national border. An overview of the agreements can be found in Annex IV.

As a result, although there is no common pan-European approach to cross-border enforcement, there are a number of ‘islands’ of cross-border cooperation in different aspects of setting, imposing and enforcing penalties on non-residents.

2.3 Characteristics of agreements

The existing bilateral and multilateral agreements can be characterised by:

• Agencies involved in each participating State – participating agencies include national police forces, legal bodies such as courts and driver and vehicle registration authorities

• Basis of agreement - The majority of cross-border enforcement agreements have been based around existing treaties or agreements (see Section 2.4). There are also examples of cooperation based on an exchange of formal letters (including Switzerland- Luxembourg and Switzerland-The Netherlands for example)

• Scope of agreement - The scope of agreements varies across Europe. For example, a number of the Swiss agreements only relate to criminal road traffic offences although others address both civil and criminal road traffic offences. The scope of the planned cooperation agreement between Switzerland and Germany is dictated by the type and level of penalty (financial penalties greater than €40) rather than the category of offence

• Form of cooperation - The majority of the operational cross-border enforcement agreements are bilateral (ie between two countries). In these cases, it is important to distinguish between those which are:

− effectively one-way agreements requiring one of the parties to carry out actions at the request of the other party (but not vice-versa)

− true bi-lateral agreements applying all requirements and responsibilities equally to both parties.

• Status and effectiveness - The majority of the cooperation agreements reviewed have been characterised as being “operational”. This means that the cooperation agreements are in place and could be used if required. There is, however, a clear distinction that has to be made between ‘status’ and ‘effectiveness’ - the latter being intended to provide a subjective measure of how well the cooperation agreements work in practice. As discussed in Section 4, barriers to cross-border enforcement render many of these cooperation agreements ineffective – even where non-resident violators can be identified, notified and even prosecuted, the nature of the cooperation agreements and their inability to address some of the key barriers often mean that penalties cannot be enforced

• Information exchanged - Each of the cooperation agreements involves the exchange of information in some way. The precise nature of the information exchanged depends on the scope of the agreement but typically, information that can be exchanged is a subset

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of vehicle owner or keeper details, information about the violator, information describing the violation, the offence to which it relates and the penalty to be imposed and enforced.

• Form of exchange - Increasing use is being made of traditional electronic means (such as fax, etc) to exchange information between parties to cooperation agreements. However, although the cross-border information exchange requirements lend themselves well to a systematic approach to data exchange, it is only recently that concepts for such systems have been proposed (see Section 3).

2.4 Existing bi- and multi-lateral approaches to cross-border enforcement

Although these characteristics listed above can be used to distinguish between the existing agreements, some important commonalities are also apparent. Most important of these is the emerging commonality between the legal (or agreed) bases on which they operate across borders.

Three level model for cross-border cooperation in practice

CAPTIVE has examined the agreements underlying four of the islands of operational (or emerging) cross-border cooperation which cover one or more elements of the cross-border enforcement chain and where the cooperation is genuinely bi- or multi-lateral. The islands of cooperation examined were:

• Cross-border cooperation between the Nordic countries

• Cross-border cooperation between the Benelux countries

• Cross-border cooperation between The Netherlands and Germany

• Progress towards UK-Ireland cross-border cooperation

Figure 5 Existing islands of cross-border cooperation examined in detail by CAPTIVE

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Each of these islands uses pan-European (but not necessarily pan-EU) legislation to provide a legal basis for the principles of cross-border cooperation in the area of road traffic law enforcement. Implementation of the specific requirements of the relevant pan-European legislation is carried out through transposition into national legislation. Finally, bi- or multi- lateral agreements provide the basis for day-to-day operational cooperation.

These commonalities are shown diagrammatically in Figure 6.

Figure 6 Commonalities between existing bi- and multi-lateral agreements

Nordic countries

Cooperation between the police agencies of the Nordic countries was considered to be one of the best examples of an effective operational multi-lateral agreement for cross-border cooperation. It formalises cooperation between police agencies in Iceland, Norway, Sweden, Denmark and Finland for a number of purposes including enforcement of penalties for both criminal and civil road traffic violations. It allows cooperation at local level with recourse to a national police contact point if necessary. Police agencies can request assistance with identifying drivers and support for imposing and enforcing a penalty on residents of other participating countries.

The legal basis for the principles of cooperation is drawn from the European Convention on Mutual Legal Assistance24. A Police Cooperation Agreement between the Nordic police agencies25 provides the basis for the implementation of the principles into a national context and for the day-to-day cross-border cooperation.

The agreement is considered to work well partly due to the geographical proximity of the participants, similarities in national languages and similarities in legal structures and requirements relating to road traffic offences.

Benelux countries

The legal principles for cooperation between the Benelux countries are also based on the European Convention on Mutual Legal Assistance26. The basis for the implementation of the

24 European Convention on Mutual Legal Assistance, Council of Europe, 20 April 1959 25 Nordic Police Cooperation Agreement, 1 January 2003 26 European Convention on Mutual Legal Assistance, Council of Europe, 20 April 1959

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principles in national law is provided by article 49 of the Schengen Treaty. The basis for day-to- day cross-border cooperation is provided through the Benelux treaty for the extradition and legal assistance for penal cases27. This allows for cooperation between courts and permits the effective transfer of court cases from the SOO to the SOR where the SOR is one of the other signatory States. In operational terms, primary cooperation is between Belgium and The Netherlands.

The Netherlands and Germany

Similar to cooperation between the Benelux countries, the legal principles for cooperation between The Netherlands and Germany are based on the European Convention on Mutual Legal Assistance28. The basis for the implementation of the principles in national law is also provided by article 49 of the Schengen Treaty.

However, the basis for day-to-day cross-border cooperation on criminal matters is provided through Agreement of Wittem29 which simplified the application of the European Convention on Extradition of 13 December 1957.

UK and Ireland

The UK and Ireland are working towards a bilateral agreement on driving licence disqualification. Unlike the other islands studied, the principles of cooperation for this agreement will be based on the European Convention on Driving Disqualifications30 (CoDD). For this Convention to be implemented, primary legislation has had to be enacted in both States. In the UK, this has been achieved through the UK Crime (International Co-operation) Bill which was given Royal Assent on 30 October 2002. This implemented a number of EU agreements on police and judicial co-operation where the UK had outstanding obligations including CoDD. In Ireland, the Road Traffic Act 2002 has implemented the requirements of CoDD. Finally, the basis for day-to-day cross-border cooperation is addressed through a bilateral agreement which is currently being drafted.

Figure 7 presents a summary of the legal bases for existing cross-border cooperation. Note that these examples of cross-border cooperation all cover criminal offences only.

Participants Strategic Implementation Execution

Nordic Countries European Convention Police Cooperation Police Cooperation (Denmark, Finland, on Mutual Legal Agreement (1 January Agreement (1 January Iceland, Norway, Assistance (20 April 2003) 2003) Sweden) 1959)

27 Treaty for the Extradition and Legal Assistance for Penal Cases between the Kingdom of Belgium, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands, 27 June 1962 28 European Convention on Mutual Legal Assistance 20th April 1959 29 Agreement of Wittem between Netherlands and Germany regarding the supplementation and simplification of applying the European Convention on Mutual Assistance in Criminal Matters, 30 August 1979 30 European Convention on Driving Disqualifications (98/C 216/01), 17 June 1998

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Participants Strategic Implementation Execution

Benelux Countries European Convention Schengen Treaty (Art 49) Treaty for the extradition (Belgium, on Mutual Legal and legal assistance for Luxembourg, The Assistance (20 April penal cases (27 June Netherlands) 1959) 1962)

The Netherlands, European Convention Schengen Treaty (Art 49) Agreement of Wittem31 Germany on Mutual Legal (30 August 1979) Assistance (20 April 1959)

United Kingdom, European Council • UK - Crime UK-IRL Bi-lateral Republic of Ireland Convention on Driving (International Co- agreement under Disqualifications (17 operation) Bill 2002 development (expected June 1998) • IRL – Road Traffic Act during 2006) 2002

Figure 7 Summary of legal bases for existing cross-border cooperation

2.5 European legislation used as a basis for existing cross-border cooperation

As shown in Figure 7, both CoDD and the European Convention on Mutual Legal Assistance together with Article 49 of the Schengen Treaty are used as a basis for existing cross-border cooperation in this area.

CoDD

The CoDD is a third pillar instrument signed by the fifteen Member States in 1998. Its main requirements are:

• that a disqualification from driving imposed by one Member State should apply in all States

• definition of the authority available to the SOR to enforce a decision imposed by a SOO

• that sentences could not be changed or reduced if they are enforced in the SOR providing the offence is recognised as an offence in both the SOO and SOR.

CoDD will come into effect ninety days after the last of the EU-15 notifies the Secretary-General of the Council of the European Union that it has adopted it in accordance with its own constitutional arrangements. Similar conditions for accession to the Convention apply to the ten States joining in 2004 through the acquis communautaire. However, there is also provision for the Convention to be implemented on a bi- or multi-lateral basis between Member States who have already completed the adoption process (Art 15, para 4). As of October 2005, only

31 Agreement of Wittem between Netherlands and Germany regarding the supplementation and simplification of applying the European Convention on Mutual Assistance in Criminal Matters, 30 August 1979

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Spain and Slovakia have adopted the CoDD although the UK and Ireland are currently working towards adoption32.

As a research team, it has proved difficult to obtain Member State’s official views on why CoDD has not been adopted more widely. However, informally, our research has suggested that there are a variety of reasons why this has not happened including:

• While there is a provision for bi- and multi-lateral cooperation in advance of full adoption, CoDD only fully comes into force ninety days after the EU-15 have adopted it rather than by coming into force by a specific date

• Due to the historical low priority of cross-border enforcement, there has been little pressure for States to ratify it

• As shown earlier in this section, one of the key historical factors driving the establishment of existing islands of cross-border cooperation has been the geographic proximity of their participants. States’ views on the CoDD have often been driven by the presence or more commonly, the absence of any neighbouring States also willing to pursuing adoption. The work currently taking place in the UK and Ireland looks set to be the first initiative to change this situation

• Implementing CoDD can involves enacting new primary legislation in Member States. This is often a lengthy process in itself, adding to the overall time it takes to ratify and implement CoDD in practical terms

• Even in those States which have notified the Secretary-General of the Council of the European Union of the completion of their constitutional requirements for adopting CoDD, changing political priorities after adoption have meant that little has ultimately been done in terms of operational implementation

• Similar cross-border cooperation goals have been achievable through other existing legislation such as the European Convention on Mutual Legal Assistance and Schengen Treaty.

Research carried out within the CAPTIVE project has shown that in general, States do not have significant concerns over the content of CoDD. Failure to implement it should not, therefore be seen as a broad ‘unwillingness’ to ratify it. Rather, this failure is a consequence of a series of pragmatic issues coupled with the low priority that cross-border enforcement has historically had on national political agendas.

European Convention on Mutual Legal Assistance

The 1959 European Convention on Mutual Assistance in Criminal Matters was one of the collaborative agreements establishing procedures for providing mutual assistance between States for the purposes of imposing and enforcing penalties for criminal offences. It set out

32 Communication from the Commission to the Council and the European Parliament on Disqualifications Arising from Criminal Convictions in the European Union, Brussels, 21.2.2006, COM(2006) 73 Final

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rules for the enforcement of sanctions and the procurement of evidence or to communicate evidence (records or documents) in criminal proceedings undertaken by the judicial authorities of a signatory State. It also specifies the conditions under which a State can refuse to provide support.

As with all Council of Europe Conventions this is not a statutory act in itself. It owes its legal existence simply to the expression of the will of those States that may become parties thereto as manifested by the signature and adoption of the Convention. As a consequence, it is only binding on States that have adopted it. At the current time, 45 countries have adopted it including all EU Member States.

2.6 Other relevant legislation

In addition to CoDD and the European Convention on Mutual Assistance in Criminal Matters, there are many other pieces of legislation or agreements relevant to cross-border enforcement including:

• relevant European treaties established primarily by the European Union • specific items of European legislation such as Directives and Conventions • policy documents such as Recommendations and Communications from the institutions of the European Union.

The treaties, legislation and policy analysed as part of CAPTIVE is shown in Figure 8.

Item Title

1 Treaty of Rome establishing the European Economic Community [France, West Germany, Italy, Belgium, the Netherlands and Luxembourg, 25 March 1957] and subsequently amended by the Treaty on European Union [1992], Treaty of Amsterdam [1997] and the Treaty of Nice [2001]

2 European Convention on Mutual Assistance in Criminal Matters [Council of Europe, 1959]

3 European Convention on the Punishment of Road Traffic Offences [Council of Europe, 1964]

4 Vienna Convention on Road Traffic [UN Economic Commission for Europe, 1968]

5 European Convention on the International Effects of Deprivation of the Right to Drive a Motor Vehicle [Council of Europe, 1976]

6 Directive 80/1263/EEC on the Introduction of a Community Driving Licence [Council of the European Communities, 1980]

7 Schengen Treaty [Joint Ministerial Gazette 1986, p.79 ff]

8 Directive 91/439/EEC on Driving Licences [Council of the European Communities, 1991]

9 Treaty of European Union, 92/C 191/01 [Member States of the European Communities, 1992]

10 European Convention on Driving Disqualifications [Council of the European Union, 1998]

11 Decision of the Schengen Executive Committee on the Agreement on Cooperation in Proceedings for Road Traffic Offences and the Enforcement of Financial Penalties [28 April 1999]

12 Commission Recommendation 2004/345/EC on Enforcement in the Field of Road Safety [21 October 2003]

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Item Title

13 Proposal for a Treaty establishing a Constitution for Europe [European Union 2004]

14 Proposal for a Directive on Driving Licences [European Commission, 2003] as amended by Parliament Report [February 2005]

15 European Council Framework Decision 2005/214/JHA on the Application of the Principle of Mutual Recognition to Financial Penalties [February 2005]

16 Communication on mutual recognition of decisions in the field of criminal law [2005]

17 Prum Convention on the stepping up of cross-border cooperation, particularly in combating terrorism, cross-border crime and illegal migration [27 May 2005]

Figure 8 European legislation and policy relevant to cross-border enforcement of road traffic rules

Addressing road traffic offences in general

The European Convention on the Punishment of Road Traffic Offences of 1964 was the first document to define and address the enforcement of road traffic offences committed in European countries. Specifically, this Convention covers the ways in which States can enforce a road traffic offence committed by a resident of another country. It provides the administrative basis for how a State of Residence and a State of Offence proceed with the enforcement of a penalty and what procedures and responsibilities have to be followed. Most importantly, this Convention allows for the majority of the enforcement process to be implemented under the rules of the State of Residence. However, as this is a Council of Europe convention, it is only binding on States who have ratified it. At present, this convention has been ratified by Denmark, Cyprus, France, Romania and Sweden and its application as a basis for cross-border enforcement is therefore limited.

Entering into force in 1977, the United Nations Vienna Convention on Road Traffic of 1968 currently operates in over 100 countries including all EU member states. This text defines all major road traffic offences and the operation of road traffic and road traffic behaviour and rules. In terms of cross-border enforcement, this Convention allows State of Offences to refuse to recognise licences issued to drivers from authorities other than their normal State of Residence. It also sets out the legal basis for a State of Offence to confiscate a non-resident drivers’ licence for the period that that driver is in their State.

Addressing specific penalties imposed for road traffic offences

Driving licence disqualifications

CoDD has already been discussed in detail in Section 2.4. Directive 80/1263/EEC on the Introduction of a Community Driving Licence was drawn up in 1980 and initially proposed a model European Community driving licence and outline harmonisation of driving rules. It was repealed in 1991 and replaced with the Directive 91/439/EEC on Driving Licences which introduced the principle of “mutual recognition” of licences issued by Member States. This means that driving licences do not have to be exchanged when a person changes their State of Residence. Additionally, this Directive allows the State of Offence to restrict, suspend,

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withdraw or cancel a licence issued by another Member State and exchange the licence for its own national licence for the purpose of recording the withdrawal (a techniques employed by Luxembourg and the UK for example). In 2003, a Proposal for a Directive on Driving Licences which was in turn amended by a Parliament Report in February 2005, was proposed. This would allow Member States to refuse to recognise drivers they believe are under suspension in another State and defines the grounds under which a State can refuse to issue a licence to a driver holding a valid foreign licence. This also goes some way to formalising a level of mutual assistance and establishing a driving licence information exchange network.

Financial penalties

The Framework Decision on the Application of the Principle of Mutual Recognition to Financial Penalties was signed in February 2005 and extents the principle of mutual recognition to pecuniary penalties imposed for a broad range of offences. Offenders are subject to the SOO’s legal system which, once its own legal powers for enforcement are exhausted, can delegate the power to enforce the penalty to the SOR in accordance with their own legal system. With some specific exceptions, the SOR is required to recognise decisions made by the SOO and to enforce the penalty imposed. (There are conditions under which the SOR may impose alternative penalty). Each State also retains all monies it collects. This decision is applicable to all Member States and is currently being enacted into Member States national legislation. This is in itself, a lengthy process as in some States, primary legislation will be required.

Support for cross-border enforcement of penalties for road traffic offences

The 1959 European Convention on Mutual Assistance in Criminal Matters was one of the collaborative agreements establishing procedures for providing mutual assistance between States for the purposes of imposing and enforcing penalties for criminal offences. It set out rules for the enforcement of sanctions and the procurement of evidence or to communicate evidence (records or documents) in criminal proceedings undertaken by the judicial authorities of a signatory State. It also specifies the conditions under which a State can refuse to provide support.

Specific support for cross-border enforcement comes from a variety of legislation. The 1999 Decision of the Schengen Executive Committee on the Agreement on Cooperation in Proceedings for Road Traffic Offences and the Enforcement of Financial Penalties ensures that Schengen States cooperate as far as possible in the road traffic enforcement process. It allows for the exchange of vehicle information and for State of Offence’s to send notifications directly to violators in their State of Residence without having to go through the State of Residence authorities. It also defines when delegation of responsibility can happen, the collection of monies received and the requirements for translation of relevant documents into official language(s) of the State of Residence language. Although this Decision was agreed in 1999, the research carried out by CAPTIVE could not find any examples of it being used in an operational context.

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Finally, the Commission Recommendation 2004/345/EC on Enforcement in the Field of Road Safety recommends that enforcement should be supported by centralised coordination points to simplify information exchange in order to progress aims of improving road safety in Europe. It also highlights the need for non-resident violations to reported to the correct authorities in the State of Residence.

The Prüm Convention, was signed on 27 May 2005 in Prüm, Germany by Belgium, Germany, Spain, France, Luxembourg, The Netherlands and Austria. Also known as Schengen III, the Convention is intended to increase cross-border cooperation in areas such as terrorism, cross- border crime and illegal immigration33. Article 12 allows parties to the Convention access to each others’ national vehicle registration data and grants them authority to conduct automated searches data relating to owners or operators and data relating to vehicles. Article 27 requires parties to provide each other with assistance in identifying owners and operators of vehicles and providing information on drivers of vehicles. Chapter 7 also introduces general provisions for data protection. Signatories to the Convention are also “...seeking to have the provisions of this Convention brought within the legal framework of the European Union, in order to improve exchange of information within the European Union…”

2.7 Other cross-border enforcement practices

In addition to the practices employed within the islands of cross-border enforcement, a number of States have also adopted specific practices which, although not offering the basis of a comprehensive cross-border enforcement solution across Europe, do make targeted attempts towards enforcing penalties on non-resident violators.

The common feature of most of these practices is that the non-resident violator has to be stopped by a representative of a duly authorised agency within the SOO. This is designed to immediately negate one of the principal barriers to cross-border enforcement – difficulties in identifying the driver once he/she has left the SOO.

On-the-spot fines

A number of Member States use on-the-spot fines as a way of imposing and enforcing penalties on non-resident violators. This is one of the only effective ways some States can deal with non-resident violators and is used even though resident violators committing the same offence are often dealt with in other ways. In itself, can be considered to be a contravention of the principle of fair and consistent treatment of all European citizens as enshrined in the Treaty of European Union34.

Although this mechanism works, it has a number of significant disadvantages. There is a growing tendency to use automatic enforcement systems to detect and record road traffic offences. At the current time, this mechanism is not effective in these cases (although in the specific case of non-Schengen states, a variant of this mechanism could conceivable be used

33 Prüm Convention, Brussels, 10900/05, LIMITE, CRIMORG 65, ENFOPOL 85, MIGR 30, 7 July 2005 34 Treaty On European Union, Official Journal C 191, 29 July 1992

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whereby violators are stopped at Ports of Entry and held to account for violations recorded by automatic systems elsewhere in the country).

It is also important to realise that to be genuinely effective against non-resident violators, on- the-spot enforcement would require a significant increase in enforcement authority manpower. This is at a time when operational manpower is generally being reduced. It is also important to realise that not all agencies with responsibility for enforcement have the authority to stop vehicles.

Short-term vehicle confiscation

This is sometimes used in conjunction with on-the-spot fines to ensure that a financial penalty can be enforced on a non-resident violator. The vehicle is confiscated when the financial penalty is imposed and is returned to the driver once the financial amount due has been paid. This can potentially result in discrimination issues if the same penalty is not or cannot be applied to a resident violator for the same offence.

Temporary removal of a non-resident violators’ driving licence

In some countries, on-the-spot enforcement is also used for the imposition of non-financial penalties. In Switzerland, a non-resident violator’s driving licence can be removed by a representative of a duly authorised agency at the roadside. However, it has to be returned when the driver next leaves the country. The effectiveness of these types of enforcement is therefore only limited to the State of Offence.

Creation of a virtual local licence

In Luxembourg and in the UK, authorities create a virtual national driving licence for every non- resident violator stopped for the first time. This practice avoids potential discrimination issues by applying the same rules and procedures to resident and non-resident violators. Both financial and non-financial penalties (penalty points) subsequently accrue to this virtual licence in the same way as they would to licence of a resident. Withdrawal of the virtual licence is also applied in the same manner as a resident’s licence. If a non-resident violator’s virtual licence is withdrawn, authorities in Luxembourg and the UK inform authorities in the State of Residence (although there are no arrangements for any action to be taken in the State of Residence).

Enforcement actions at Ports of Entry

Even when a non-resident violator’s vehicle cannot be stopped, some limited enforcement actions can, in theory, be taken. It has been argued that in countries which operate formal Ports of Entry, if vehicle identification data such as the licence plate and vehicle make, model and colour can be recorded, they can be stopped on re-entering the State of Offence and non- resident violators can be held to account for violations they have committed previously. Although workable in theory, especially for frequent travellers in the State of Offence, there are many disadvantages. For example, there is no guarantee that the non-resident violator will return to the State of Offence. Even if he/she does return, they have to be driving the same

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vehicle. It also does not take into account timescales for imposition and enforcement of a penalty.

Other practices

In a number of countries, the enforcement of penalties on non-residents is possible due to specific geographic or cultural circumstances. For example, in Malta, many of the 1.5 million visitors hire cars during their stay on the island. If they commit seat belt or speeding violation, a ticket is sent directly to the car hire company within 24 hours. The hire car company then charges the credit card of the appropriate hire clients. In the case of drink driving, violators can be taken to court and required to stay on the island to deal with the court proceedings35.

35 European Transport Safety Council Enforcement Monitor No.3, May 2005

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3 RESEARCH AND IMPLEMENTATION ACTIVITIES

3.1 Introduction

This section examines projects and other related initiatives carried out by the European Commission and other agencies around Europe that have some impact on cross-border enforcement. The majority of these projects are directly related to transport, though some are broader in scope. It should be noted that this is not an exhaustive list or analysis but a representation of those projects considered to be the most relevant and have the most impact on cross-border enforcement.

The research projects and related initiatives analysed in CAPTIVE are shown in Figure 9.

Item Title

1 Social Attitude to Road Traffic Risk in Europe SARTRE I [INRETS et al, on behalf of European Commission DG VIII 1991 - 1992]

2 European Car and Driving Licence Information System, EUCARIS [Association of currently 17 European Registration Authorities, 1994 – onwards]

3 LINGUA-NET [Prolingua Ltd et al, 1995 - onwards]

4 Schengen Information System, SIS [1995 onwards]

5 Traffic Information Systems for Police, TISPOL [Pan European Police organisations, 1996 to date]

6 Social Attitude to Road Traffic Risk in Europe SARTRE II [INRETS et al, on behalf of European Commission DG VIII 1996 - 1997]

7 Video Enforcement for Road Authorities, VERA [KLPD et al on behalf of European Commission DGINFSO, 1997-1999]

8 Guarding Automobile Drivers through Guidance Education and Technology, GADGET [KvF et al, on behalf of European Commission DG TREN, 1998-1999]

9 ROSETTA [Transportation Research Group et al, on behalf of European Commission 1999-2002]

10 Description and Analysis of Post Licensing Measures for Novice Drivers DAN [KvF et al, on behalf of European Commission DG TREN and others, 2000]

11 ANDREA Analysis of Driver Rehabilitation Programmes, ANDREA [KfV et al on behalf of European Commission DG TREN 2000-2002]

12 Enhanced Safety Coming from Appropriate Police Enforcement, ESCAPE [VTT et al on behalf of European Commission DGTREN, 2000-2003]

13 Comparative Study of Road Traffic Rules and Corresponding Enforcement Actions in the Member States of the European Union [TiS.pt et al on behalf of European Commission DGTREN, 2001- 2003]

14 SUNflower: a comparative research of the development of road safety in Sweden, United Kingdom and the Netherlands, 2002

15 Gathering Information on Speeding, Drink Driving and Seat Belt Use in the Member States [Clifford Chance on behalf of European Commission DGTREN, 2003]

16 Costs-Benefit Analysis of Road Safety Improvements [ICF Consulting on behalf of European

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Item Title

Commission DGTREN, 2003]

17 Video Enforcement for Road Authorities2, VERA2 [KLPD et al on behalf of European Commission DGTREN, 2003-2004]

18 Social Attitude to Road Traffic Risk in Europe SARTRE III [INRETS et al, on behalf of European Commission DG TREN, 2003 - 2004]

19 Réseau permis de conduire, RESPER [EC-DOC Belgium et al on behalf of European Commission DGTREN, 2004-to date]

20 Digital Expert System to support the checking of (road) transport documents by European enforcement agencies, TDS [KLPD on behalf of European Commission DG TREN, 2004 – to date]

21 Requirements for Enforcement of Overloaded Vehicles in Europe, REMOVE, [KLPD et al 2004 to date]

22 Fully Automatic Integrated Road Control, FAIR, [IVF et al on behalf of the European Commission DGTREN, 2005 to date]

23 Police Enforcement Policy and Programmes on European Roads, PEPPER [VTT et al on behalf of the European Commission DGTREN, 2005 to date]

24 Network of Vehicle Registration Authorities, REGNET, [KLPD et al on behalf of the European commission, DGTREN, 2005 to date]

Figure 9 European research and other initiatives relevant to cross-border enforcement of road traffic rules

The details given below are a summary of each project’s relevancy to CAPTIVE. In order to describe the relevance of each of the initiatives reviewed, they have been grouped together as follows:

• Establishing the need for cross-border enforcement

• Establishing the principles of cross-border enforcement

• Potential tools to support cross-border enforcement

• Road traffic rules and regulations

• Impacts, attitudes and responses to road traffic rules

3.2 Establishing the need for cross-border enforcement

The SUNflower project carried out a comparative analysis of road safety in the three best performing EU countries, namely Sweden, the UK and the Netherlands (the ‘SUN’-countries)36. It concluded that enforcement has a key role to play in ensuring compliance with road traffic rules and therefore, in improving road safety. Although not making specific comments on cross-border enforcement, SUNflower demonstrated that if all of the measures it recommended

36 SUNflower: a comparative research of the development of road safety in Sweden, United Kingdom and the Netherlands, 2002

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were implemented in the SUN countries, estimated gains in terms of saving percentages of fatalities between 2000 and 2010 could be:

• For speed enforcement: Sweden 17%, UK 10%, NL 10%

• For enforcement of belt and child restraint use: Sweden 2%, UK 4%, NL 8%

• For enforcement of drink-driving: Sweden 3%, UK 4%, NL 5%.

Completed in 1999, the Video Enforcement for Road Authorities (VERA) project explored issues and opportunities arising from the use of digital systems for enforcing road traffic laws and regulations. One of the project’s most significant findings was that there were no common rules or procedures for enforcing penalties on violators across Member States’ borders. Further, in most Member States, VERA found that non-resident violators were not pursued at all due to a range of legal, operational and practical issues. This situation was highlighted as perhaps the most significant barrier to fair and consistent enforcement across the EU. As a consequence, VERA made the first outline proposals for what it called a ‘European Enforcement Management Committee’ - a network for the management and exchange of enforcement data specifically to support cross-border enforcement. This was the basis for the eNFORCE concept described below.

The VERA recommendations were also incorporated into the findings of the ROSETTA project. ROSETTA was much broader in its scope and aimed to support the effective application of the results from a range of EU-funded technical projects in the transport field. This was achieved through a timely and organised interaction between key players and decision-makers in Europe with key members of the VERA consortium representing the enforcement community.

The Enhanced Safety Coming from Appropriate Police Enforcement (ESCAPE) project was launched in January 1999 to examine the state of road traffic violations and the success of current police enforcement techniques in different European countries. This three-year long project confirmed the VERA findings by highlighting the lack of cross-border enforcement tools particularly in light of increasing transit traffic across Europe. Importantly, ESCAPE also concluded that there was broad general public support for enforcement where used appropriately.

3.3 Establishing the principles of cross-border enforcement

The Video Enforcement for Road Authorities 2 (VERA2) project was established as a follow- up to the VERA project and focused specifically on addressing the barriers preventing effective cross-border enforcement in Europe. It had two major outcomes – text for a draft Directive on Cross-Border Enforcement and a more detailed elaboration of the eNFORCE concept. The VERA2 recommendations provide a detailed basis for one solution to cross-border enforcement. It should be noted that the recommendations focus on cross-border enforcement on financial penalties although with some adaptation, it is understood they could equally apply to non-financial penalties.

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3.4 Potential tools to support cross-border enforcement

EUCARIS is an operational communications network based on a multilateral Treaty of 29 June 2000 which allows governments to exchange vehicle and driving licence registration information. Developed by authorities in five initiating European countries which register motor vehicles and issue vehicle documents and driving licences, EUCARIS is designed to allow European countries the ability to share information about vehicles and driving licences specifically for the purpose of monitoring missing and stolen vehicles and to detect document fraud. In many ways, EUCARIS has been a pioneer in inter-State data exchange for enforcement purposes and, with eleven countries participating in full and a number of others participating in part or considering whether or not to do so, it has demonstrated what can be achieved in this field.

With the development of EUCARIS II, the communication is completely based on web service technology. In the second half of 2006, the system will be able to exchange vehicle owner/holder information. In May/June 2006, the signatories to the Prüm Convention [P4] are expected to start using the new technical and functional infrastructure for the exchange of vehicle and owner/holder data.

Lingua NET is an operational messaging system designed for use by police agencies across the EU. Specifically developed for real-time information exchange (both text and images), this system translates between languages and is supported by a user group that meets regularly. Lingua NET has been suggested as a possible basis for a cross-border enforcement data exchange network.

Reseau Permis de Conduire (RESPER) is an ongoing initiative funded by the European Commission. It is a three-phase project developing a system for exchanging information between driving licence authorities in Member States. Currently coming to the end of its feasibility assessment stage, RESPER will focus on the exchange of driving licence data for the purposes of road traffic-related enforcement. If RESPER proves to be viable, this should prove to be a significant step forward in cross-border enforcement.

As mentioned above, VERA2 developed the concept of eNFORCE designed to support the cross-border enforcement of penalties for the violation of road traffic rules (and ultimately, transport-related charging, tolling and tax violations). Currently being developed further by a number of Member States, the eNFORCE concept comprises an organisational and technical network for the exchange of data relevant to the enforcement process. It is based around a set of core functions (ie those functions which eNFORCE must provide if it is to start delivering on its aims and objectives and exchange of the data prescribed by the Framework Decision Certificate37) and what are known as eNFORCE Plus functions which represent those functions that, while not essential to providing the core functionality, are expected to provide users with a

37 European Council Framework Decision 2005/214/JHA on the Application of the Principle of Mutual Recognition to Financial Penalties, 24 February 2005

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complete cross-border enforcement ‘service’. The eNFORCE Plus functions are also intended to provide some of the functions that are currently missing from the enforcement chain such as providing a linkage to States’ vehicle registration databases, providing a linkage to driver information from States’ registration authorities and compiling an intelligence facility to help address repeat offenders.

The Digital Expert System to support the checking of (road) transport documents by European enforcement agencies (TDS) project is developing and testing a document support system to assist enforcement agencies throughout Europe in roadside operations to check the documents involved in commercial transport. If successful, such as system could greatly improve the efficiency, quality and accuracy of roadside checks involving non-resident drivers. Inconsistencies in driving licences and other legal documents would be apparent to enforcement officers who stop a vehicle at the roadside. At a similarly technical level, Fully Automatic Integrated Road Control (FAIR) is looking at the integration of up-to-date enforcement technologies with effective enforcement strategies derived from best practice across the Member States. FAIR aims to use this information to create a technologically sound enforcement chain that could have important operational impacts on the process of cross border enforcement.

Requirements for Enforcement of Overloaded Vehicles in Europe (REMOVE) is developing a technical and operational strategy to harmonise the enforcement of overloaded vehicle violations throughout Member States. The outcome of this project could be a useful example of how barriers to the cross-border enforcement of specific violations could be addressed and subsequently expanded to cover other offences. As a follow-up to ESCAPE, the Police Enforcement Policy and Programmes on European Roads (PEPPER) is examining existing police enforcement approaches, their linkages with relevant national policies and identifying how information can be better disseminated to make the enforcement chain more efficient.

Finally, the proposed Network of Vehicle Registration Authorities (REGNET) project is intended to examine the feasibility of establishing a network linking the national vehicle registration authorities in the EU and the EEA to exchange information on number plates and re-registered vehicles. If feasible and once implemented, this network would provide one of the key tools to cross-border enforcement.

3.5 Road traffic rules and regulations

Analysis of the legal basis and implications of road traffic rules across the European Union has been carried out at a number of levels. Completed in 2004, the Comparative Review of Road Traffic Rules developed a broad inventory of road traffic rules and penalties for violating those rules used across Europe. It also identified the primary agencies involved in different aspects of the rule-setting and penalty-enforcement processes. The study also confirmed many of the issues relating to the imposition and enforcement of penalties on what it called ‘foreign drivers’.

Another study Gathering Information on Speeding, Drink Driving and Seat Belt Use in the Member States (also known as the ‘Clifford Chance’ study after its authors) examined the legal

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aspects of the three road traffic offences identified as being a top priority by the European Commission – speeding, seat belt use and drink driving. It was found that in most cases, non- resident violators are in principle, subject to the same penalties as resident violators despite the known barriers to their enforcement. However, it also identified a number of States where specific ‘surrogate’ measures such as on-the-spot fines and short-term vehicle confiscation in lieu of payment of a fine are used for non-residents but not necessarily for residents.

Completed in June 2003, a study into the Costs-Benefit Analysis of Road Safety Improvements determined the benefits that could be achieved if enforcement of speeding, drink-driving, non-use of seat belts and existing European Commission road safety laws relating to commercial road transport were improved in all EU countries.

3.6 Impacts, attitudes and responses to road traffic rules

A number of other studies such as GADGET, DAN and ANDREA have focused on the impacts of, attitudes towards and drivers’ responses to road traffic rules. Guarding Automobile Drivers through Guidance Education and Technology (GADGET) examined changes in driver behaviour resulting from technical, educational and social road safety measures. It highlighted the difficulties in applying these measures such that they have an impact on non- resident drivers and also identified the use of surrogate measures such as on-the-spot fines as the practical way non-resident violators are dealt with.

In assessing how novice drivers are dealt with, Description and Analysis of Post Licensing Measures for Novice Drivers (DAN) recommended that harmonisation of the road traffic laws applicable to post-licensing systems and measures may be necessary. It once again highlighted the often-key differences between Member States traffic rules and as a consequence, the different implications for enforcement. Following on from DAN, Analysis of Driver Rehabilitation Programmes (ANDREA) specifically looked at the effectiveness of driver rehabilitation programmes designed for drunk drivers and for drivers who commit serious traffic offences. In particular, ANDREA examined which aspects of rehabilitation courses had the most impact on changing drivers’ behaviour.

The Social Attitude to Road Traffic Risk in Europe (SARTRE) set of projects (I, II and III) examined the attitude and behaviour of drivers in different European countries and how these have changed over time. The key finding was that drivers in different countries have varying perceptions of driving, road traffic safety and road traffic rules. Any proposed solutions for cross-border enforcement will have to take into account these differing perspectives.

3.7 Related initiatives

There are a number of other non-project initiatives which also have a bearing on cross-border enforcement across Europe. TISPOL, the European Traffic Police Network, is a pan- European initiative set up in 1996 to provide a forum for police officers to share best practice and to highlight and improve road safety across Europe. TISPOL coordinates cross-border enforcement campaigns and organises seminars and conferences. Cross-border enforcement of road traffic laws is of real interest to TISPOL which, through the involvement of some of its

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members in projects such as VERA, VERA2 and ESCAPE, has taken a leading role in this area.

The Schengen Information System was developed in support of the Schengen Treaty for the purpose of exchanging information for public safety and security. It provides authorities designated by the Contracting Parties with an automated search procedure through which they can access reports on persons and objects for the purposes of border checks and controls and other police and customs checks. It is governed by strict data protection laws which restrict the amount of personal data that can be exchanged.

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4 BARRIERS TO EFFECTIVE CROSS-BORDER ENFORCEMENT IN EUROPE

4.1 Introduction

While there is general consensus that something needs to be done to make cross-border enforcement effective, there are a number of real and perceived barriers which mean that to date, it has not been addressed on anything like the pan-EU scale that is necessary.

This section describes these barriers in detail. It first addresses high-level legal, organisational, operational and miscellaneous barriers before looking more closely at issues specifically relating to non-financial penalties which require further analysis within CAPTIVE.

This section incorporates information derived from a questionnaire and follow-up interview exercise conducted by the project team. Key personnel from relevant national administrations such as police and ministries of justice were identified and invited to complete a questionnaire. A follow-up personal or telephone interview was then conducted to expand on the answers from the questionnaire.

4.2 Legal barriers

Existing legal basis

At the current time, there is no single consistent legal basis for all aspects of the cross-border enforcement chain across the European Union. Despite their being several pieces of existing or new legislation which provide a legal basis for significant elements of the enforcement chain, this situation does give rise to a number of concerns which include:

• scope limitations – each piece of existing or new legislation only addresses parts of the enforcement chain. For example, the 2005 Framework Decision38 is the most recent piece of legislation of relevance to cross-border enforcement. In order for its requirements to be applicable, the non-resident violator must have been identified, notified in accordance with legal requirements, summoned to court, sentenced and all reasonable enforcement measures must have been taken and concluded. In practical terms, these steps are rarely completed for anyone other than the most serious non- resident violators and so without accompanying legislation for other parts of the enforcement chain, this Framework Decision may have limited application for the majority of road traffic offences committed by non-residents.

• origin of legislation – much of the legislation used as a legal basis for cross-border enforcement of road traffic offences has not been specifically designed for that purpose.

38 European Council Framework Decision 2005/214/JHA on the Application of the Principle of Mutual Recognition to Financial Penalties, 24 February 2005

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For example, the Framework Decision39 is designed to deal with a broad range of offences including “…conduct which infringes road traffic regulations…” Due to this lack of specific legislation, key cross-border enforcement barriers (such as guaranteeing access to national vehicle data) remain outstanding

• coherence of existing owner legislation – the piecemeal nature of the existing legal basis for elements of the cross-border enforcement chain means that there are question marks over the coherence of the legislation. Existing legislation still leaves well-known loopholes open (for example, Directive 91/439/EEC on Driving Licences and its subsequent amendments still make so-called ‘driving licence tourism’ possible although proposed legislation its expected to close this loophole)

• operational use of different legislation –where States and neighbouring countries have tried to implement elements of the cross-border enforcement chain, they have done so using a range of different legislation. For example, the Nordic Police Cooperation Agreement is based on European Convention on Mutual Assistance in Criminal Matters 40. Switzerland bases many of its agreements on the Vienna Convention on Road Traffic41. These legislative instruments are not binding on countries who have not signed them and as a consequence, cannot provide an operational basis for pan-European cross-border enforcement

• recognising today’s enforcement practices – two key enforcement practices tend to be less well catered for in existing legislation. In most countries, enforcement is becoming an increasingly automated process with less manual intervention. Existing legislation does not support this well. Secondly, an increasing number of (less-serious) road traffic offences are handled under civil (or administrative) law rather than criminal law. Existing legislative instruments need to be able to support cases brought under criminal and civil law.

• Differences in the force which different types of legislation has. Secondary European Union legislation is based on the Treaties. Directives, Framework Decisions, Decisions and Conventions are all binding on Member States. Recommendations and opinions not binding.42. Contrast that with Council of Europe Conventions which are not statutory acts in themselves but owe their legal existence simply to the expression of the will of those States that may become parties thereto as manifested by the signature and adoption of the treaty. As a consequence, conventions are binding only on the States that ratify them.

Differences in road traffic rules and penalties

In the absence of clear guidance on how to implement cross-border enforcement, differences in road traffic rules and offences, in the burden and standard of proof required to successfully prosecute a violator and in penalties and secondary penalties applied in Member States

39 European Council Framework Decision 2005/214/JHA on the Application of the Principle of Mutual Recognition to Financial Penalties, 24 February 2005 40 European Convention on Mutual Assistance in Criminal Matters [Council of Europe, 1959] 41 Vienna Convention on Road Traffic [UN Economic Commission for Europe, 1968] 42 http://europa.eu.int/eur-lex/en/about/pap/process_and_players2.html#1

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(especially in States where the main deterrent is considered to be non-financial) present additional barriers.

Cultural differences in the application of penalties for the same offence are also apparent. For example, States apply different thresholds to the speed at which a driver must be travelling in excess of the speed limit before a penalty can be imposed. In The Netherlands for example, penalties are imposed for any driver travelling at 7 km/h or more over the speed limit; in Spain, this threshold is 25km/h or more over the speed limit.

Owner-driver responsibility

There are still differences in who is legally responsible for a violation. Unless the vehicle is stopped within the State of Offence and the driver’s personal details recorded, the cross-border enforcement chain always requires the State of Offence to first identify the registered owner of a vehicle. In the majority of States where the driver is considered to be responsible for a violation, the registered owner is permitted the opportunity to nominate another person as being the driver (and therefore, being responsible). In The Netherlands, however, the vehicle owner is always considered to be responsible for a violation.

Data required

Differences in the data required to successfully conclude the prosecution of a violation in each State also present potential legal problems. This is especially important with the growing use of automated enforcement devices. For example, in Germany and Denmark, an image of the vehicle driver violator has to be stored to assist with identification later on. Other States specifically require that drivers cannot be identified from the recorded image. This raises the possibility for legal challenges when States such as The Netherlands (which does not require the driver’s image to be recorded) send notifications to German vehicle owners who have been identified from the German vehicle registration database in accordance with the terms of the Dutch-German agreement mentioned in Section 2.4. It is understood that to date, there have been no complaints from German violators about this difference in data requirements although it is not clear whether or not such a complaint could form the basis for a legal challenge if pursued.

Acceptance of data

An important step in the Europe-wide acceptance of violation data will be the acceptance of a European certificate for measurement instruments which also includes the quality of stored data including images. However, this will not clarify differences in data required to successfully conclude the prosecution of a violation between the Member States (for example, requirements for front or rear images for example).

Notification

Notifying the non-resident violator that a violation has been detected and informing him of the actions that need to be taken as a consequence is a key part of the cross-border enforcement

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chain. However, differences in what is legally acceptable as proof of notification in Member States may give rise to further opportunities for legal challenges. For example, in the United Kingdom, notifications are sent to violators using the national postal system with no special delivery conditions. In other States where the national postal system is considered less reliable, other measures have to be used to ensure delivery. In Spain for example, every official document (including notifications) is sent as an item of certified mail. Recipients have to sign for documents sent as certified mail on receipt. If an official document is not accepted by the intended recipient in a specified period of time, the details of the notification are published in the Official State Bulletin. In this way, the recipient is presumed to have knowledge of the notification even if they have refused to sign for the certified mail.

These different approaches to notification must be taken in account when considering cross- border enforcement. Citizens used to receiving official documents by certified mail may be unaware of the significance of documents received via the normal postal service (or any other delivery service) and could in principle, provide the basis for a legal challenge. This is confirmed in the Framework Decision43 which requires that in the case of a written procedure “…the person concerned was, in accordance with the law of the issuing State, informed personally or via a representative competent according to national law of his right to contest the case and of time limits of such a legal remedy”. and if the person appeared personally in the proceedings “…that the person was informed personally, or via a representative competent according to national law, of the proceedings in accordance with the law of the issuing State.”.

4.3 Organisational barriers

Contact agencies/persons in other States

The lack of clear guidance on cross-border enforcement across the European Union means that where attempts to impose penalties on non-resident violators are carried out, they are invariably conducted by different agencies in different States. As a consequence, there is no clear picture of which agencies should be contacted in each State for the purposes of cross- border enforcement of road traffic rules. Where some kind of cross-border enforcement is carried out, they often rely on informal contacts between enforcement agencies in participating States.

One practical reality of this is the Swiss case where it issues information on non-resident violators to agencies in countries which it has agreements with under the Vienna Convention on Road Traffic44. In many cases, these are not the agencies with responsibility for cross-border enforcement (where this has been defined) – the usual consequence is therefore that no action is taken against the violator in their State of Residence.

This barrier was confirmed during the CAPTIVE information gathering exercise where there was no consistency in the type of agencies who were willing or able to respond to the project

43 European Council Framework Decision 2005/214/JHA on the Application of the Principle of Mutual Recognition to Financial Penalties, 24 February 2005 44 Vienna Convention on Road Traffic [UN Economic Commission for Europe, 1968]

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team’s questions.

The need to address this barrier was recognised in Article 2 of the Framework Decision45 which requires that “Each Member State shall inform the General Secretariat of the Council which authority or authorities, under its national law, are competent according to this Framework Decision, when that Member State is the issuing State or the executing State.” Further, it permits States to “…designate…one or more central authorities responsible for the administrative transmission and reception of the decisions and to assist the competent authorities”.

Language

Another important organisational barrier is the language barrier. At the moment, there are twenty-one official languages in the European Union. The majority of administrations are not able to (efficiently) process requests from other States unless they are translated into (one or more of) the national official language(s). It should also be noted that if a non-resident violator is to be prosecuted in accordance with the laws of the State of Offence, legal documentation is usually issued in the official language(s) of that State. Translations are rarely, if ever, provided. The value of being able to work in different official languages is shown by the effectiveness of the Nordic Police Cooperation Agreement where the fact that all participants speak the same or very similar languages is seen as a real operational strength. It is also important to note that existing Human Rights legislation46 requires that citizens be informed in a language they can understand.

Prioritisation of non-resident violations

Where some kind of cross-border enforcement is conducted, requests for assistance from one State to another are typically processed manually and as a consequence, responses can take considerable time. Priority is usually given to dealing with violations committed by residents given the greater likelihood of successful prosecution, lower costs, known procedures etc.

4.4 Operational barriers

Identifying the vehicle

With the enforcement of road traffic rules becoming increasingly automated, the process of identifying the vehicle and subsequently, the individual responsible for a violation is firmly established as the first major barrier to cross-border enforcement procedures.

Where a vehicle can be stopped in the State of Offence, enforcement officers can seek to identify the vehicle, its registered owner/keeper and other information relevant to the vehicle

45 European Council Framework Decision 2005/214/JHA on the Application of the Principle of Mutual Recognition to Financial Penalties, 24 February 2005 46 Convention for the Protection of Human Rights and Fundamental Freedoms, Council of Europe, CETS No. 005, Signed in Rome on 4 November 1950 supported by national legislation which enacts this Convention into law in Member States

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from the driver47.

However, where it is not possible to stop the vehicle in which the violation was committed in the State of Offence, attempts to identify the responsible person typically start by trying to uniquely identify the vehicle. Increasing automation has resulted in increasing use of optical character recognition systems “trained” to read national licence plates and “interpret” their syntax. By contrast, vehicle licence plates from outside the State of Offence typically have to be read and interpreted manually. Successful identification of a vehicle registered outside the State of Offence therefore relies on the cooperation of authorities in the State of Residence. As licence plate syntax is not necessarily unique across Europe, to be successful, this manual process may need to involve liaison with several States before the vehicle in question can be uniquely identified.

Identifying the owner/driver

Where a vehicle is stopped in the State of Offence, the driver should be identifiable through their driving licence or other form of identification (either presented on-the-spot or presented within a specified period of time at a specified location).

In cases where the vehicle cannot be stopped, if it can be uniquely identified through the processes discussed above, it is theoretically possible to identify its registered owner or keeper. In practice, this also relies on the cooperation of authorities in the State of Residence to identify and provide information on the vehicles’ registered owner from their national vehicle registration records.

Cost of operations

Operations to impose and enforce penalties on non-resident violators (such as double-keying of data) involves significantly more time and effort than imposing and enforcing penalties on resident violators. Where they can be completed successfully, many of the processes have to be conducted manually and given the barriers discussed in this section, at the current time, the chances of successful prosecutions remain small. The return on investment is therefore seen as a significant barrier to effective cross-border enforcement.

Process

Any cross-border enforcement process has to recognise that other than for the most serious road traffic violations prosecuted as criminal offences, a non-resident violator can only be compelled to return to a State where he/she committed a violation if that offence is covered by the requirements of extradition treaties.

47 Note that identifying a vehicle, its registered owner/keeper and confirming other vehicle-related information (such as whether or not it has been reported stolen) is typically a precursor action to stopping it. Information obtained from the driver is often used as a confirmation to official records

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4.5 Miscellaneous barriers

Until recently, cross-border enforcement has not been seen as a political priority. Operational priorities have meant that the enforcement of penalties on non-residents has often been a lower priority for enforcement agencies in most States.

At a public level, support for the enforcement of road traffic rules and therefore, for cross-border enforcement differs across Europe. Historically, violating road traffic rules has not been seen as serious enough to warrant cross-border enforcement actions given the inherent time and cost involved and the small likelihood of successful prosecution.

4.6 Issues specific to non-financial penalties for further analysis

The issues discussed so far are generic to the cross-border enforcement chain rather than to any particular type of penalty. This section presents issues that are specific to the cross-border enforcement of the non-financial penalties being addressed by CAPTIVE.

One important distinction to note between financial and non-financial penalties is the role of the SOR in enforcing them. Financial penalties are what CAPTIVE has characterised as State of Offence imposed penalties (SOIP). These are set on non-resident violators by competent authorities in the SOO. Imposition and enforcement of the SOIP is initially carried out by the SOO although for financial penalties, COPEN allows that if the SOO is unable to impose and enforce the financial penalty on the non-resident violator, it can delegate authority to undertake these actions to the SOR. In these cases, the original SOIP effectively becomes a State of Residence imposed penalties (SRIP).

SRIPs are also set by competent authorities in the SOO. However, successful imposition of an SRIP on a non-resident violator typically involves annotating their driving licence record (in the case of penalty points for example) and in some cases, removal of their driving licence (in the cases of driving disqualifications). These are actions which can only be undertaken by the SOR.

Figure 10 SOIP and SRIP

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It should be noted that many of these are ‘theoretical’ issues – in the vast majority of cases, one or more of the generic issues already raised prevents the cross-border enforcement process from ever reaching the stage where the issues discussed below need to be addressed. These will remain theoretical issues until the key generic issues are satisfactorily addressed.

Driving disqualifications and bans

The key issues relating specifically to the cross-border enforcement of driving disqualifications and driving bans include:

• Applying for a new licence – the processes for applying for new driving licence in each Member States need to require each applicant to declare any disqualifications (or other driving-related penalties still current) to the relevant authority. Authorities need to have the means to check the accuracy and completeness of the information being provided by the applicant. The European Court of Justice’s ruling on Case C-476/0148 has added further significance to the checking of applicant’s information by deciding that the State issuing a driving licence has exclusive competence to ensure that residential and other requirements are met – other States cannot refuse to recognise a licence which they consider has been incorrectly issued.

• Multiple licences – the principle being promoted by the Commission in 3DLD is ‘one driver – one licence’. However, there needs to be clarity over whether or not there are situations where a driver can legitimately hold more than one licence and if so, how penalties such as driving disqualifications can be applied in these cases

• Setting and imposing the disqualification – until legislation such as CoDD comes into force in all Member States, the process of setting, imposing and enforcing driving disqualifications is not clear and as a consequence, neither are the respective responsibilities of authorities in Member States.

• What are violators disqualified from driving? – clarity is required over the extent of each driving disqualification insofar as the type of vehicle(s) a violator is not allowed to drive. Is there a potential for this to unfairly impact professional drivers?

• Timeliness of imposing a disqualification – the time taken to carry out and complete cross-border enforcement processes related to driving disqualifications should not result in claims for unfair treatment in accordance with the principle of proportionality or in opportunities for violators to acquire a new licence in another Member State

• Starting and ending the disqualification – requirements and procedures for the State of Residence to remove the violator’s driving licence (at the start of the disqualification period) and possibly that the licence has been returned to the driver (at the end of the disqualification period ) must be clarified

• Where does disqualification apply? – in practical terms, the geographic area in which a disqualification is ‘effective’ is the area in which it can be enforced. Even if a

48 Flash International Executive Alert, KPMG, 30 July 2004

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disqualification is legally valid in an area, it cannot be ‘effective’ unless authorities in that area have the information (and the means to access that information) in a practical way when required

• Differences in administrative processes – there are a number of administrative issues which further complicate the cross-border enforcement of driving disqualifications (and other penalties which are recorded on a driver’s licence). These include non-standard licence formats, language barriers and the lack of unique driving licence numbers across the EU. Although this should be addressed through 3DLD49, it will take time for licence types to be regularised

• Requirements for re-issuing driving licences – can any specific requirements for re- issuing a driver’s licence (for example, completion of a retest or driver training course) be effectively applied to non-residents?

• Availability of information on disqualified drivers – information on drivers who are disqualified in each Member State is not readily available to relevant authorities and to enforcement officers for the purposes of roadside checks. In order to meet one of the requirements of 3DLD50, RESPER is examining the feasibility of a network specifically to exchange driving licence data for the purposes of road traffic-related enforcement. While this is expected to suggest that an office-based network is feasible, the potential to use such a network via mobile devices (and therefore for the majority of enforcement officials in the field) is not yet clear

• Practicalities of enforcement – Successful enforcement of a driving disqualification means that the driver does not drive. This is extremely difficult to enforce – in practical terms, a disqualification can only be enforced by stopping a driver and checking their driving licence. Technological solutions and enforcement intelligence work may offer solutions in the future

Points-related penalties

• Use of points-related penalties – points-related penalties are not used by all Member States. Where they are used, there is no correspondence with other types of penalties (ie financial penalties) used in other States

• Offences for which points-related penalties can be applied – there is no definitive list of exactly which offences can be penalised by points-related penalties in each Member State or how they can be used in combination with other types of penalties (ie financial penalties)

• Application of points-related penalties – there is no common way in which points- related penalties are applied. In some States (for example, in the UK), points are

49 Article 3, Report on the proposal for a directive of the European Parliament and of the Council on driving licences, (COM(2003)0621 – C5-0610/2003 – 2003/0252(COD)), Commission Committee on Transport and Tourism, 3 February 2005 50 Article 8, Report on the proposal for a directive of the European Parliament and of the Council on driving licences, (COM(2003)0621 – C5-0610/2003 – 2003/0252(COD)), Commission Committee on Transport and Tourism, 3 February 2005

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accumulated up to a threshold after which a further penalty is triggered. In other States (for example, in France), points are deducted from a specified value, a further penalty being triggered when the violator has zero points remaining

• Recognising and enforcing points-related penalties imposed by another State – assuming points systems are comparable (or an equivalence can be established), which points are imposed on the violator – those imposed by authority in the State of Offence or those typically imposed in State of Residence for same offence? Clarification also needs to be provided on the grounds under which a State of Residence can refuse to enforce points imposed by the State of Offence on the violator. What happens where points systems are not used, are not comparable or where equivalence cannot be established?

• Points swapping - can authorities be sure that the non-resident violator receives the points rather than someone nominated by them (so-called “points swapping”)

• Effective ‘value’ of points for different road traffic offences – the effective ‘value’ of points differs between States when used in combination with other forms of penalty such as financial penalties. The thresholds at which points imposed for two or more offences trigger another type of penalty also differ and as a result, impact the ‘effective’ value of points from different States. Some States also use different thresholds for different types of driver – for example in the UK, any driver who incurs 12 or more penalty points within a 3-year period is liable to be disqualified under the "totting -up" system. However, new drivers have to retake (and pass) a driving test if they acquire 6 or more penalty points within 2 years of passing their first test

• Recording of points – information about points imposed on violators needs to be made available to authorities in other States for enforcement purposes

• Time period during which points count towards another penalty – the period of time during which points remain on a driver’s licence and count towards a further penalty needs to be clarified. The time taken to carry out and complete cross-border enforcement processes related to points-related penalties should not result in claims for unfair treatment in accordance with the principle of proportionality or in opportunities for violators to acquire a new clean licence in another Member State

• Transferring points to new licences – When a driver applies for a driving licence in a new State of Residence, is the presence of any current points-related penalties imposed by the previous State of Residence recognised and subsequently transferred across to the new licence?

• Proportionality issues regarding retrospective application of points-related penalties previously imposed by a State of Residence prior to getting new State of Residence licence – ie if, on moving to a new State of Residence, a driver commits driving offences which are subject to points-related penalties, the State of Residence cannot typically apply points to the new resident’s ‘foreign’ licence but can apply them if violator subsequently replaces their ‘foreign’ licence with one issued by the State of Residence.

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Other non-financial penalties

Although other non-financial penalties are not addressed by CAPTIVE as discussed in Section 1, the imposition and enforcement of these penalties on non-resident violators raises a number of unique issues which do not necessarily apply to driving disqualifications and points-related penalties. These include:

• For penalties such as training and rehabilitation courses, community service and restorative justice:

− Where do these penalties have to be carried out?

− If in the State of Offence, can non-resident violators be compelled to attend in the State of Offence?

− If in the State of Residence, is the content equivalent to the same penalty in the State of Offence?

• What are the costs of imposing and enforcing these kinds of penalties?

• For penalties such as vehicle seizure, who has jurisdiction to remove a vehicle and what are the conditions for its return

• Where can a vehicle be seized?

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5 ESTABLISHING EFFECTIVE CROSS-BORDER ENFORCEMENT IN EUROPE

5.1 Introduction

Previous sections have shown that there are a number of ‘islands’ of cross-border enforcement across Europe. They have shown that there is a significant body of research which has identified how cross-border enforcement could operate across the EU-25. However, it is also clear that significant barriers remain to be addressed before any kind of EU- wide approach can be implemented.

This section of the Final Report examines how implementing new enforcement processes and increasing the consistency between existing enforcement procedures could form the basis for a common, EU-wide approach to cross-border enforcement.

5.2 Aims of cross-border enforcement in Europe

The effective imposition and enforcement of penalties on non-resident violators across the EU will make a valuable contribution in two key areas as follows:

Fair and equal treatment for all road users

To the road user, national boundaries are largely irrelevant. Regardless of which State they are travelling in, they expect to be treated in the same manner as other road users. This ‘principle’ of non-discrimination is enshrined in Article 12 of the EC Treaty which states that when violations are committed, violators are treated in a fair, equal and consistent manner regardless of where the offence takes place, where the vehicle is registered, where the violator’s driving (or operating) licence was issued or where the driver/owner legally resides.

Member States therefore have a responsibility to their own citizens and to citizens of other States to ensure that the imposition and enforcement of penalties for road traffic offences is transparent across the EU-25.

Maximising enforcement’s impact on road safety

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involve three aspects: driver education, road engineering and enforcement. When education and engineering do not have the desired impact, the deterrent effect of penalties imposed through the enforcement process aims to change driver behaviour and ultimately, achieve a greater degree of compliance. Cross-border enforcement aims to ensure that enforcement’s deterrent effect applies to all road users.

Tertiary contributions

Effective cross-border enforcement also has the potential to contribute to other road transport applications including improving the recovery of charges due for the use of highway infrastructure (such as road tolls and congestion/road user charging for example).

5.3 Cooperation and compatibility

When States impose and enforce penalties on resident violators, all processes are carried out internally within that State. However, when States impose and enforce penalties on non- resident violators in accordance with the principles discussed above, many of the procedures require cooperation and interaction with other States. This immediately raises the questions regarding the compatibility of States’ enforcement processes.

If penalties are to be successfully imposed and enforced on non-resident violators, procedures need to be both practical from an operational perspective and where necessary, compatible with processes used by other States. This degree of compatibility can only be achieved by all States adopting a ‘common’ approach to imposing and enforcing penalties on non-resident violators.

5.4 Origins of a common approach

Before describing what CAPTIVE means by a common approach to cross-border enforcement, it is important to understand that there are a number of principles derived from EU and national legislation and from operational experience gained over many years which any common approach must reflect. These principles are as follows:

1. Applicable laws - Road users are subject to the national road traffic laws of the State in which they are travelling

2. Processing of violations - Road traffic violations are initially processed by competent authorities in the SOO in accordance with its national laws and legal processes

3. Liability - Liability for a violation is attributed in accordance with the national laws of the SOO

4. Penalties applied to non-residents – All violators are subject to the penalties imposed by the SOO

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5. Mutual recognition of penalties – SORs must recognise all penalties set by competent authorities in the SOO as long as the offence and the penalty exist in both the SOO and SOR

6. Mutual cooperation and support - Where a violation is committed by a non-resident, competent authorities in the SOO can seek support from competent authorities in the SOR for the purpose of processing the violation or for the purposes of imposing or enforcing a penalty

Figure 11 Principles of cross-border enforcement

5.5 A ‘common approach’

The concept of a ‘common approach’ to cross-border enforcement aims to ensure fair and equal treatment of all road users and to help improve road safety by implementing the principles described above in an operational environment.

The CAPTIVE common approach comprises three elements:

• common operational procedures which must be carried out by every Member State in the same way. The majority of these common procedures relate to the state-to-state interactions necessary to impose and enforce penalties on non-resident violators. (For example, all data must be exchanged between states in a common format). These common procedures will typically be additional to States’ existing enforcement procedures

• interface procedures. These are procedures which effectively provide the interface between existing national enforcement procedures that each State uses to impose and enforce penalties on resident violators and the common operational procedures for cross-border enforcement. Each State will be required to implement these procedures although the exact nature of implementation and operation is left to each States’ discretion in accordance with any relevant national legislation. (For example, data to be exchanged will typically be retrieved from States’ national databases and translated into the common exchange format. The precise mechanism for doing this is a matter for each State to decide. It is not necessary for all States to carry out this procedure the same way as long as the common procedure – data exchange in the common format – can be guaranteed)

• common (minimum) operational standards which guarantee that States will cooperate in support of each others’ enforcement processes by carrying out the common and supporting national operational procedures to a minimum standard of performance. (For example, a response to a request for information from another State must be given within a specified time period).

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These procedures and standards of operation are designed to ensure consistent state-to-state interactions. In simple terms, this will ensure that:

“For the purposes of enforcement, States can cooperate with each other in a consistent way.”

CAPTIVE Recommendation 1

A common Europe-wide approach to the cross-border enforcement of penalties imposed on non-resident violators needs to be defined and agreed by all Member States. This common approach shall consist of:

• common operational procedures to be implemented by all Member States in the same manner • interface procedures which provide the link between the common operational procedures and existing national enforcement procedures • common (minimum) operational standards.

It is these procedures and standards of operation that provide the basis for the following definition of cross-border enforcement as used by the CAPTIVE project. CAPTIVE defines cross-border enforcement as:

“The application of operational procedures and standards to allow the imposition and enforcement of penalties on violators51 of road traffic laws who do not reside in the State where they committed the violation, whose vehicle is not registered in the State where the violation was committed or whose driving/operating licence is not issued by the State where the violation was committed52”

Figure 12 provides an overview of the relationship between the common operational procedures to be adopted by each State, the national operational procedures and the common standards of operation.

Figure 12 Overview of the relationship between common operational procedures, interface procedures and national enforcement procedures

51 For the purposes of CAPTIVE, ‘violator’ is taken to mean the same as ‘offender’ 52 Words in italics have been changed compared with VERA2 version

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For the majority of States, implementing these procedures and standards will have minimal impact on their existing enforcement processes. However, it is anticipated that adopting these procedures and standards will require some additional processes to provide the degree of consistency and integration required.

Figure 13 represents the CAPTIVE view of the common approach from detection of a violation through to the enforcement of a penalty. It shows the operational interactions between the SOO (in yellow) and the SOR (in blue). This is a further enhancement of the view developed during VERA2.

Figure 13 Generalised view of enforcement chain (resident and non-resident violators)53

53 This figure is used solely for the purposes describing and analysing different aspects of cross-border enforcement. It should be recognised that this generic representation is not intended to reflect any specific enforcement application or any Member States’ implementation of the enforcement chain. It should also be recognised that while this generic representation includes the enforcement procedures typically adopted in most Member States, there will, by definition, be State-specific procedures which are not included.

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6 A PLAN TO IMPLEMENT THE COMMON APPROACH

6.1 The need for an Implementation Plan

Addressing the barriers discussed in Section 4 and working towards a common approach to cross-border enforcement across the EU-25 will require multiple actions:

• undertaken at different levels (ie pan-EU, regional, national and local)

• by different stakeholders

• and with a range of different timescales.

The role of an Implementation Plan as defined by CAPTIVE is to organise these actions into a coherent plan and to manage and coordinate the implementation of the plan. It will describe each of the actions, its inputs and outputs, identify who is responsible for carrying out each of the actions identified and the dependencies between each of the actions.

CAPTIVE Recommendation 2

An Implementation Plan is necessary to set out all the actions that need to be carried out in order to develop, implement and operate all elements of the common approach to cross- border enforcement.

Figure 15 presents the CAPTIVE Implementation Plan. It comprises actions at five levels:

• preparatory and support actions which:

− provide the structure to the plan

− facilitate the involvement of stakeholders in delivering the Plan

− build political support for the actions being taken

• defining and agreeing the common approach which will involve:

− agreeing a vision for cross-border enforcement

− agreeing the common approach

− agreeing requirements for the common operating procedures, the interface procedures and the common (minimum) operational standards

• establishing the legal basis for the common operating procedures, the interface procedures and the common (minimum) operational standards

• defining and developing standards and tools to support the common approach

• implementing, operating and monitoring the common approach in each State.

The consolidated Implementation Plan drawing together the actions described in each of the four levels in the form of a Gantt chart is presented in Section 12.

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6.2 Realities of implementation

The Implementation Plan recognises Member States’ existing national enforcement processes are, in many cases, very different and have varying degrees of sophistication. The starting point from which States begin to implement the common approach will therefore be different. The consequences of this will be that States will:

• have different actions to carry out

• work to differing timescales

• have different approaches to achieving common objectives recognising national cultures and sensitivities and different legal systems.

This is shown diagrammatically in Figure 14 where the bottom of the pyramid represents the current situation with different national approaches to the imposition and enforcement of road traffic laws. The top of the pyramid represents States carrying our cross-border enforcement in a consistent manner by adopting the common approach. The aim of the Implementation Plan is to enable all States to align their national enforcement processes with the common approach in a coordinated and managed fashion.

Figure 14 Recognising the practical realities of deployment

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Figure 15 The CAPTIVE Implementation Plan

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7 CAPTIVE IMPLEMENTATION PLAN - PREPARATORY AND SUPPORT ACTIONS

7.1 Introduction

This section presents details of the preparatory and support actions that CAPTIVE believes are necessary to facilitate the implementation of the common approach. These are:

Figure 16 Preparatory and support actions

7.2 Step 1 -Coordination and management

Addressing the barriers to cross-border enforcement across Europe will require careful coordination and monitoring to ensure that:

• Individual activities converge to achieve the common approach to cross-border enforcement

• The common approach and the elements of the common approach are regularly reviewed to ensure that they continue to provide the basis for effective cross-border enforcement

• Best use is made of available Commission and State funding

• A consistent message is given to Member States in support of the common approach to cross-border enforcement.

The Commission is considered to be the only body competent to fulfil this role at the necessarily European strategic level or with the authority to delegate the role to another nominated body. Without a clear steer and coordination, there is a danger that the agreement and implementation of a common approach to cross-border enforcement will not be realised across Europe. Alternatively, it may not develop in a way that can benefit all States.

Strategic coordination between Directorate Generals

One of the distinguishing characteristics of cross-border enforcement from a Commission perspective is that aspects of it lie within the remit of a number of Directorate Generals as follows:

• Policy and strategy aspects lie within the remit of DGTREN

• Criminal and judicial aspects lie within the remit of DGJLS

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• Technology aspects of data exchange could lie within the remit of DGINFSO or DG Enterprise.

Given the Commission’s proposed role in managing and coordinating the programme of activities as a whole, it is vital that a clear, coherent and accountable manageable structure is established within the Commission itself. Within this internal management structure, there should be an identified point of contact for all matters concerning cross-border enforcement.

There are a number of specific areas which should be pursued by the Commission through its internal management structure. These are as follows:

Involving and working with stakeholders

The active participation of stakeholders is essential to ensure that the common approach is acceptable to all Member States and that it meets their own requirements for cross-border cooperation. (Appendix VI gives an overview of the stakeholders in cross-border enforcement). A proposed mechanism for achieving this is discussed in detail in Section 7.3.

Monitoring and coordination of Member State activities

Implementing the common approach will require actions to be undertaken at a EU- and at a national level. Although responsibility for carrying out national actions will lie with Member States, it will be important that progress of these activities is monitored and reporting on a regular basis. This will help to ensure that:

• Individual activities converge to achieve the vision for cross-border enforcement

• The vision, and the requirements to achieve the vision, are regularly reviewed

• Best use is made of available funding

• A consistent message is given to Member States in support of a common approach to cross-border enforcement.

Monitoring the progress of Member States and the Commission towards implementation and operation of the common approach will be a key activity and fundamental to ensuring that its goals and objectives are achieved in practice.

Facilitating EU-level activities

Actions which need to be undertaken at a EU-level will include:

• A limited number of specific implementation activities such as the development of a European cross-border data exchange system (see Section 10.2)

• Specific standard-setting activities such as establishing a common European data exchange format, a standard cross-border cooperation agreement and common terms and conditions of operation

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• Further research and development targeted towards specific areas of cross-border cooperation. Suggested areas of research and development are highlighted in the Detailed Implementation Plan in Section 12.

The Commission will have a clear role in coordinating and in some cases, funding those activities that need to be undertaken at the EU-level. This is essential to ensure a coordinated solution is achieved and that it is applicable across the EU.

Benchmarking

A key part of this role will be to understand the degree to which cross-border enforcement is having an impact on the total number of road traffic violations and therefore, road safety. Benchmarking is an important exercise that should be carried out in a structured manner on a regular basis. The Commission’s Recommendation on Enforcement recommended that each Member State produce a national enforcement plan which would include a report on the number of non-residents recorded as committing speeding, seat belt and drink-driving offences. This recommendation should be implemented in full and extended to cover other road traffic offences.

CAPTIVE Recommendation 3

Actions to address the barriers to cross-border enforcement will need to be taken at different levels and by different groups of stakeholders. Careful coordination of these actions is vital. Responsibility for overall coordination and monitoring of these actions should lie with the European Commission as it is the only body competent to fulfil this role at the necessarily strategic level.

7.3 Step 2 - Stakeholder participation

The barriers to effective cross-border enforcement need to be addressed in a cooperative manner and in a way that can benefit all Member States. Agencies (and key individuals within those agencies) with responsibility for cross-border enforcement in each Member State and who ultimately will be able to negotiate with other States have to be identified and their participation in this process secured.

As CAPTIVE has found, this is not a straightforward task as in many States, different agencies are involved in different aspects of cross-border enforcement. As an initial step, CAPTIVE recommends that the Commission establish a ‘Core Stakeholder Group’ (COSTAG) comprising:

• representatives of key decision makers from the States identified as Early Adopters of cross-border enforcement (as identified in VERA2 Deliverable D1-1 and the VERA3 Grant Application),

• representatives from the European Commission DGTREN and DGJLS

• a manageable number of other stakeholders whose participation The Commission

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considers to be appropriate.

The COSTAG is based on the concept of the eNFORCE Implementation Forum proposed in VERA2. It is, of course, recognised that the COSTAG cannot have any formal legal authority to make decisions or to commit either The Commission or Member States to one or more particular courses of action. However, it can act in an advisory and consultation capacity in much the same way as other Commission expert groups have done in the past.

Primary roles of the proposed COSTAG will be to:

• Establish and agree terms of reference for the COSTAG

• based on results of CAPTIVE recommendation 4, review and agree the proposed vision for cross-border enforcement

• agree a common approach to cross-border enforcement (using the proposals made by CAPTIVE as a basis) to work towards and ultimately deliver the agreed vision for cross- border enforcement (see Section 8.5)

• agree which elements of the common approach need to be carried out in a common way by all States (again using the proposals made by CAPTIVE as a basis)

• agree on a mechanism for securing the participation of other stakeholders

• review, agree and maintain an Implementation Plan for the coordinated development of cross-border enforcement (again using the proposals made by CAPTIVE as a basis)

• ongoing monitoring and reviewing of State’s implementation activities

• monitoring the development and implementation of common tools to support common operational procedures. These will include the enforcement data dictionary and the data exchange system(s) that will facilitate the operation of the common operational procedures

Figure 17 shows how the involvement of stakeholders could be achieved within the framework of internal Commission coordination and the Commission’s interaction with Member States.

In order to capitalise on current political support and to demonstrate that the Commission is taking practical steps towards addressing cross-border enforcement, it is vital that the COSTAG is established and assumes its duties as soon as practically possible. It may be possible to establish a first incarnation of COSTAG through the Steering Group proposed as part of the forthcoming VERA3 project. A first chair could be selected from a senior representative of one of the VERA3 partners. Three of the Early Adopter States (France, Spain and The Netherlands) are represented in the consortium. Secretariat services, which will be essential to the smooth and effective operation of the COSTAG, could be provided via the VERA3 Project Office.

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Figure 17 Outline for internal Commission coordination and involvement of stakeholders

CAPTIVE Recommendation 4

Effective stakeholder participation in addressing and removing the barriers to cross-border enforcement is essential. A Core Stakeholder Group (COSTAG) should be established to help address priority issues and to agree on a mechanism for securing the effective participation of all other stakeholders across the EU.

7.4 Step 3 - Political support

Historically, cross-border enforcement has had, and continues to have, a low profile on many states’ political agendas. This has been the largest single barrier to achieving any kind of broad consensus as to how this issue should be addressed across Europe.

The Implementation Plan must therefore include a priority action to raise political awareness regarding the scale of the problem, the impacts it is having (including its potential to undermine other road safety improvement efforts if left unaddressed), the potential benefits of improving the current situation and realistic ways to start addressing it.

Changing this situation will involve:

• Determine the current political will

• Raising the profile of cross-border enforcement and its benefits

• Maintaining the profile.

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CAPTIVE Recommendation 5

The political will in each Member State to develop and implement a common, EU-wide approach to the cross-border enforcement of penalties imposed on non-resident violators of road traffic laws should be determined. Efforts should be directed towards raising the political profile of cross-border enforcement especially where it is currently a low priority and to building EU-wide consensus on the need for a common approach to cross-border enforcement and a commitment to achieving this common approach within a specified period.

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8 CAPTIVE IMPLEMENTATION PLAN – DEFINING AND AGREEING THE COMMON APPROACH

8.1 Introduction

The preparatory and support actions described in Section 7 provide the structure within which actions to agree and implement the common approach to cross-border enforcement can be undertaken at European and Member State level. Figure 18 shows the actions considered necessary to define and agree the common approach as proposed by CAPTIVE.

Figure 18 Actions to agree and implement the common approach

This section describes these actions in more detail.

8.2 Step 4 - Agreeing the vision for cross-border enforcement

A vision is important for a number of reasons. In the early stages, it will provide a basis on which the benefits of cross-border enforcement can be framed and ‘sold’ to stakeholders. It should also demonstrate how cross-border enforcement could provide a platform from which the Commission’s safety goals could be achieved and which would ensure that all drivers are treated in a fair and equal manner. As the programme of implementation progresses, it should provide a target towards which all work should be aimed.

As an initial view, a vision could be based around the following themes:

• The application of national road traffic laws being truly consistent and transparent to all road users regardless of where they are travelling in Europe

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• Every Member State having a coherent enforcement strategy that recognises the needs of both national and trans-national road users within its national boundaries, within the European Union and beyond.

• Each national enforcement strategy being consistent and complimentary with those of neighbouring States ensuring that from the travellers’ perspective, enforcement is carried out seamlessly across borders.

• Authorities committed to setting, imposing and enforcing road traffic laws for the purposes of casualty reduction and ensuring the fair and equal treatment of all road users regardless of:

− where the violation takes place

− where the vehicle is registered

− which Member State the driver/owner legally resides in

− which State issues the driver’s licence to drive and/or operate the vehicle.

• All equipment used to enforce road traffic laws being type approved by recognised bodies and being subject to regular inspection and re-calibration where necessary.

• National enforcement processes structured such that all elements of the enforcement chain are carried out in a fair, ethical, cost-and resource-effective manner.

• Where violations are committed by non-resident violators, authorities in Member States cooperate to ensure that all elements of the enforcement chain are also carried out in a cost-and resource-effective manner and that both national and relevant EU legislation are respected.

• Member States sharing knowledge and best practice with a view to the mutual improvement of all aspects of road traffic law enforcement.

CAPTIVE Recommendation 6

A vision for cross-border enforcement in Europe must be created and agreed. The vision should be around the dual themes of:

• Ensuring the fair and equal treatment of all road users regardless of where the violation takes place, where the vehicle is registered, which Member State the driver/owner legally resides in or which State issues the driver’s licence to drive and/or operate the vehicle

• Ensuring cross-border enforcement’s contribution to improving road safety.

Reviewing, revising and agreeing the vision is one of three initial actions the COSTAG should take responsibility for and which must be agreed on a pan-EU basis.

8.3 Step 5 - Agreeing the common approach to cross-border enforcement

Once the vision is agreed, the COSTAG should focus on reviewing and agreeing the need for a

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common approach to cross-border enforcement. If the need is subsequently confirmed by all States, the COSTAG should review and agree what the common approach should consist of. The common approach proposed by CAPTIVE in Section 5.5 of this report comprises:

• common operational procedures to be implemented by all Member States in the same manner

• interface procedures which provide the link between the common operational procedures and existing national enforcement procedures

• common (minimum) operational standards.

This definition should be used as a starting point for COSTAG discussions.

8.4 Step 6 – Defining the common operational procedures

Assuming that the COSTAG agree that a common approach is necessary and that proposals for a common approach made by CAPTIVE should be used as a basis for further discussion, the COSTAG’s third action should be to review and agree the common operational procedures. As with the vision and the common approach, pan-EU agreement is essential as these procedures will have to be carried out by every Member State in the same way if the common approach is to be successful.

For clarity, CAPTIVE has defined the common operational procedures at two levels:

• Tier 1 procedures are the high-level procedures that States need to implement to work collaboratively with other States in pursuit of the vision for cross-border enforcement

• Tier 2 procedures provide a further level of definition to the Tier 1 procedures and provide a basis for the analysis of requirements described in Section 8.5.

Figure 19 presents the two-tier breakdown of the common procedures.

Tier 1 Common Tier 2 Common operational procedures procedures

0 General

1 Registration 1.1 Process application for documentation documentation 1.2 Issue documentation

1.3 Cancel documentation

2 Record violation 2.1 Record minimum common data for violation

3 Identify vehicle 3.1 Identify State where vehicle registered

3.2 Request vehicle registration information

3.3 Access vehicle registration information

3.4 Identify driver/owner/keeper SOR

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Tier 1 Common Tier 2 Common operational procedures procedures

4 Identify driver/owner 4.1 Identify State where driver/owner resides or where owner has legal place of business

4.2 Request information on driver/owner registration

4.3 Access driver/owner information

5 Notify driver/ 5.1 Prepare notification owner/operator 5.2 Issue notification

6 Set penalty 6.1 SOO set penalty in accordance with national laws

6.2 Corresponding/alternative penalty in SOR determined (if necessary)

6.3 Record penalty set

7 Impose penalty 7.1 SOO take actions necessary to impose SOIP

7.2 SOO request SOR to take any actions necessary to impose SRIP

7.3 SOR take actions necessary to impose SRIP

8 Enforce penalty 8.1 States take actions necessary to enforce penalty

9 Close enforcement 9.1 Close enforcement process process

Figure 19 Common operational procedures

8.5 Step 7 – Defining requirements

Requirements for the common operational procedures

The requirements for each of the common operational procedures will specify to a greater level of detail what needs to be in place if the common approach is to be realised. The requirements and the standard to which they must be executed need to be defined and agreed by the COSTAG. This will ensure that the key processes which comprise the common approach are developed and implemented in a coordinated and consistent manner across the EU. A detailed analysis of what will be required to implement each of the common operational procedures is provided at Tier 2 level in Annex III.

In defining requirements for common operational procedures, three key issues need to be taken into account:

• It is important that requirements are not unduly prescriptive – they should be at a sufficiently high level so as not to place undue implementation or operational restrictions on Member States or European Union bodies

• The requirements must be defined in the context of national laws and procedures – these may preclude specific requirements in one or more States which would otherwise be desirable as part of a EU-wide common approach

• The requirements must be defined such that the common approach can be expanded to

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cover new States as they join EU. As far as is possible, it is also desirable that the common approach is applicable to non-EU countries which may wish to participate in some or all of the cross-border processes.

Requirements for the interface procedures

The interface procedures need to be defined on a national level and within the context of both Member State legislation and existing national enforcement procedures. While the interface procedures will aim to achieve the same objectives (for example, the retrieval of vehicle registration data from national databases and translating it into the common EU format in advance of exchange with another State), the way these objectives are achieved will be specific to each State and its own existing national enforcement procedures.

Requirements for the common (minimum) operational standards

Once the common operational procedures and the interface procedures are agreed, common (minimum) operational standards can be defined. These will be the minimum operational standards which every State has to achieve. For example, they could include the maximum time that SORs can take to respond to requests for information from a SOO. Both the COSTAG and national enforcement agencies will need to achieve agreement on these standards. The COSTAG should define where minimum standards of operation are required while national agencies should focus on agreeing what is an acceptable minimum standard of operation in each area.

CAPTIVE Recommendation 7

In order to ensure that the key processes which comprise the common approach are developed and implemented in a consistent manner across the EU, requirements for each of the common operational procedures and the interface procedures identified in the Implementation Plan need to be defined.

Requirements for the common operational procedures need to be defined and agreed by all stakeholders. Requirements for interface procedures to be implemented at a national level need to be defined and agreed within each Member State but with due reference to the requirements for the common operational procedures.

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9 CAPTIVE IMPLEMENTATION PLAN - ESTABLISHING THE LEGAL BASIS

9.1 Introduction

This section describes Step 8 in the CAPTIVE Implementation Plan - understanding and establishing the legal basis for the actions necessary to agree and implement the common approach to cross-border enforcement as described in Section 8. These legal actions are summarised in Figure 20.

Figure 20 Actions to establish the legal basis for the common approach

There are two key points to note in this analysis of legal bases as follows:

• The CAPTIVE definition of a ‘legal basis’ is existing or pending legislation (ie legislation which is currently in the process of being agreed, ratified and implemented) which defines a legally-accepted and legally-binding requirement to carrying out specific actions

• For cross-border enforcement to be effective, legislation has to apply to all Member States. It is therefore important to note that our research has only examined existing legal bases provided by European Union legislation such as the CoDD, COPEN and 3DLD). Although there is relevant Council of Europe legislation in this area, it has not been considered to provide a legal basis for pan-EU cross-border enforcement as it is only binding on the States that ratify them (see Section 4.2).

9.2 Step 8 – Establishing the legal basis the common approach

CAPTIVE has examined the legal basis for the common approach to cross-border enforcement in four areas:

• Legal basis for the principles of the common approach

• Legal basis for common operating procedures

• Legal basis for interface procedures

• Legal basis common (minimum) operational standards.

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Legal basis for the principles of the common approach

The principles of cross-border enforcement are presented in Figure 11. Legal bases exist for all of these principles although for the fourth, fifth and sixth principles, legal bases for penalties other than financial penalties and driving disqualifications do not exist. Figure 21 gives an overview of these legal bases.

Principles CoDD54 COPEN55 3DLD56 National legislation

1 Applicable laws 3

2 Processing of violations 3

3 Liability 3

4 Penalties applied to non-residents Article 1* Article 1** (Article 12*)

5 Mutual recognition of penalties Article 4* Article 6** (Article 8*) (Article 12*)

6 Mutual cooperation and support Article 2* Article 6** Article 8*

* Driving disqualifications only ** Financial penalties only (..) Inferred legal basis

Figure 21 Existing legal basis for principles of common approach

CoDD provides a European legal basis for three of the six principles of cross-border enforcement for driving disqualifications. As noted in Section 2.4, despite the fact that there is widespread agreement over the objectives and content of the Convention, it has not been implemented by all Member States.

COPEN addresses three of the six principles and is applicable to financial penalties for ‘criminal’ road traffic offences. States are currently working towards a 22 March 2007 deadline for implementation in national legislation and it is difficult to determine the effectiveness of this legislation for cross-border enforcement of penalties imposed for road traffic offences until after this date.

Once implemented, 3DLD will provide further confirmation of the legal basis for the fourth, fifth and sixth principles for driving disqualifications.

We have found no existing legal basis for the fourth, fifth and sixth principle for non-financial penalties other than driving disqualifications or for financial penalties for non-criminal offences. Therefore, the situation with regard to the legal bases for these penalties/offences will have to

54 European Convention on Driving Disqualifications (98/C 216/01), 17 June 1998 55 European Council Framework Decision 2005/214/JHA on the Application of the Principle of Mutual Recognition to Financial Penalties, 24 February 2005 56 Report on the proposal for a directive of the European Parliament and of the Council on Driving Licences, (COM(2003)0621 – C5-0610/2003 – 2003/0252(COD)), ommittee on Transport and Tourism, 3 February 2005

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be clarified and if, as expected, it proves necessary, a new legal basis will have to be established.

Legal basis for the common operational procedures

Figure 22 illustrates the legal basis for the Tier 1 and Tier 2 common procedures. (This is described in greater detail in Annex III). This shows that as with the legal basis for the principles of the common approach, CoDD, COPEN (once implemented) and 3DLD (once agreed and implemented) provide an existing legal basis for around 40% of the requirements for the Tier 2 common procedures for driving disqualifications, for financial penalties for criminal road traffic offences or for both as follows:

• For driving disqualifications, there is a broad legal basis for most aspects of common procedure 1 (registration documentation) and common procedures 7-9 (ie impose penalty through to the closing of the enforcement process)

• For financial penalties, there is also a legal basis for most aspects of common procedures 7-9 (ie impose penalty through to the closing of the enforcement process). Note that a legal basis for common procedure 1 (registration documentation) is not considered relevant to financial penalties.

Around 30% of the Tier 2 common procedures are national issues and the legal basis should be provided by national legislation. This leaves around 30% of the Tier 2 common procedures which are not covered by any legal basis across Europe. For driving disqualifications and financial penalties, this particularly relates to common procedures 2-6 (record violation through to set penalty). Note that we have found no European legal basis for applying any aspect of the common approach to penalties other than driving disqualifications and financial penalties for criminal road traffic offences.

Tier 1 Common Procedures CoDD57 COPEN58 3DLD59

0 General (3) (3)

1 Registration documentation 3

2 Record violation 3 Identify vehicle Existing legal 4 Identify driver/owner basis not clear 5 Notify driver/ owner/operator

6 Set penalty

7 Impose penalty 3 (3)

57 European Convention on Driving Disqualifications (98/C 216/01), 17 June 1998 58 European Council Framework Decision 2005/214/JHA on the Application of the Principle of Mutual Recognition to Financial Penalties, 24 February 2005 59 Report on the proposal for a directive of the European Parliament and of the Council on Driving Licences, (COM(2003)0621 – C5-0610/2003 – 2003/0252(COD)), ommittee on Transport and Tourism, 3 February 2005

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Tier 1 Common Procedures CoDD57 COPEN58 3DLD59

8 Enforce penalty 3 3 3

9 Close enforcement process 3 3 3

(..) Inferred legal basis

Figure 22 Existing legal basis for Tier 1 procedures

While this is a very approximate analysis, it does show that where the legal basis for the common procedures is unclear, it will need to be clarified. Additional legislation is thought to be necessary to provide a legal basis for the procedures not currently covered.

Legal basis for the interface procedures

The legal basis for interface procedures will need to be addressed on a case-by-case basis. At this formative stage, it is anticipated that a pan-EU legal basis for the interface procedures will not be necessary and that it can be provided via national legislation. However, all national legislation will have to take account of general EU legislation covering issues such as data protection and data exchange for example.

Legal basis for the common (minimum) operational standards

The common (minimum) operational standards will be performance- rather than legislation- driven. Once the COSTAG and national enforcement agencies agree on the areas where standards of operation are necessary, the need for a legal basis should become clearer.

While a national legal basis may be required to give specific agencies authority to implement standards of operation, at this formative stage, it is anticipated that standards themselves can be defined, agreed and implemented via some kind of formal European agreement (such as a multi-State cross-border enforcement cooperation agreement for example).

9.3 Achieving a common approach in an operational environment

Section 9.2 has demonstrated that additional legislation is needed to ensure that there is a clear legal framework for the deployment of all aspects of the common approach in an operational environment across the EU. Three primary alternatives for developing this legislative framework have been considered as follows:

• Expanding the existing bilateral agreements

• Extending existing/pending legislation

• Agreeing and implementing new legislation

Expansion of existing bilateral agreements

Section 2.4 described the existing ‘islands’ of cross-border enforcement cooperation based

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primarily on bilateral agreements and having at least part of their legal basis in existing legislation. The first alternative for developing a comprehensive legal framework would be to explore the potential to expand these islands of cooperation by:

• Examining opportunities for other States to join existing islands

• Examining opportunities for States to initiate new islands

• ‘Bridging’ across the discrete islands to identify opportunities for island-island cooperation as shown diagrammatically in Figure 23.

Figure 23 Opportunities to ‘bridge’ between existing islands of cross-border enforcement

These alternatives would build on practices which are in operation today and have proven to be successful and sustainable albeit in very specific circumstances. If consensus on a common approach to cross-border enforcement could be agreed between these islands, it should be possible for the distinct approaches taken by each of the islands to converge over time leading to an increasingly pan-EU approach.

Our investigations have shown that in theory, there is potential for all three of these possibilities to be pursued. However, these islands of cooperation work in part due to the fact that participating States have cultural, language, legal, operational and geographical commonalities. However, from a practical perspective, these commonalities may prove to be a barrier to further expansion and to island-island cooperation.

Other areas of concern with these approaches include:

• States participating in each of the islands would need to agree on common goals,

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common objectives and most importantly, a plan for the convergence of their approaches over time

• Even with a plan in place, achieving true convergence would rely on each States’ political will and commitment over a long period of time. The failure of the majority of States to ratify and implement CoDD suggests that this is often not possible

• Achieving true convergence would also rely on States achieving what is specified in the plan within a specific time period. In this model, there is no independent monitor of progress with authority or responsibility for ensuring States meet their commitments

• Both the success and the timescale for progress cannot therefore be guaranteed.

Existing/pending binding agreements/legislation

The second alternative examined by CAPTIVE would establish a legal basis for a common approach based on existing/pending legislation (primarily CoDD, COPEN and 3DLD).

As noted in Section 2.4, CoDD was signed in 1998 but has only been adopted by a small number of States. COPEN is currently in the implementation phases – States have until 22 March 200760 to take the necessary steps to comply with its provisions. 3DLD remains to be adopted and implemented although after the Council of Ministers reached a political agreement on 27 March 2006, it is anticipated that formal adoption of the Directive by the European Parliament will be effective later this year in a second reading. The Directive should therefore enter into force by the end of 2006 and therefore be applicable at the latest at the end of 201261.

Issues relating to this alternative include:

• The implementation issues above need to be successfully resolved before existing legislation can provide a solid base on which to build

• Implementation of this existing legislation will inevitably be staggered. Cross-border enforcement will only be effective once the last piece of legislation was implemented across the EU-25

• Even were this existing legislation to be fully implemented, there would still be:

− elements of the common approach which would not have a solid legal basis foundation for driving disqualifications and financial penalties of criminal road traffic offences (ie primarily common procedures 2-6 (record violation through to set penalty))

− there is no existing legislation covering the application of the common approach to other non-financial penalties.

60 Council Framework Decision 2005/214/JHA on the application of the principle of mutual recognition to financial penalties, Article 20, OJEC L76/16, 22 March 2005 61 Press Release IP/06/381: Member States Agree on the European Driving Licence, Brussels, 27 March 2006

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Additional legislation would be therefore required particularly in the areas of common procedures 2-6 (record violation through to set penalty).

New consolidated binding agreements/legislation

The final alternative involves consolidating the legal basis for all requirements for a common approach into one piece of new legislation. This would apply to both financial and non-financial penalties commonly used for road traffic offences and ensure that all common operational procedures (as described in Section 8.4) have a common, agreed legal base. Timescales and processes for implementation in each State would also be more consistent with each other.

The primary issues to be addressed in this approach include:

• Degree to which new legislation is binding on Member States thereby ensuring that all States have a commitment and responsibility to implement it

• Degree to which new legislation is prescriptive enough to ensure that the common approach is implemented in a common manner across the EU-25 but not overly prescriptive such that it inhibits each States’ flexibility to implement the approach in the manner best suited to satisfying their national requirements. Also needs to be flexible enough to allow new States to align themselves with requirements during accession and to adopt it when formally joining the EU

• Until the EU Convention or a similar high-level Treaty is agreed and adopted, the EU’s pillar structure remains in place. Therefore, consideration has to be given to which pillar any new legislation should be developed under.

• Depending on which pillar any new legislation is developed under, the most appropriate form of legislation needs to be determined

• The scope of new legislation in terms of whether administrative/civil road traffic offences are addressed in addition to criminal road traffic offences

• The relationship between the requirements of new legislation and the corresponding timescale for it to enter into force

• How should the elements of the common approach (as described in Annex III) which already have a legal basis be dealt with.

Conclusions of providing a legal framework for a common approach

Given these considerations, CAPTIVE has concluded the following in terms of developing a legal basis for the common approach to cross-border enforcement:

1. 3DLD must be agreed, adopted and put into effect by all Member States as a matter of urgency

2. Adoption of the CoDD must also be pursued as a matter of urgency. Information given informally to the CAPTIVE research team suggest that the barriers to adoption are

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not content-related; rather, for the States where we were able to get an opinion, the barriers relate to the timescale and complexities of adoption into national legislative frameworks and the absence of other States available to cooperate with. The adoption of CoDD by the EU-25 should be possible and should therefore be pursued as a matter of urgency. As a third pillar instrument, if CoDD cannot be adopted, consideration must be given to converting it into a Framework Decision with similar content and a specified date for implementation.

3. States must take all necessary measures to comply with COPEN by 22 March 2007 (as specified in Article 20 of Council Framework Decision 2005/214/JHA, 24 February 2005

4. A new agreement is required to implement the elements of the common approach which would not have a solid legal basis foundation for driving disqualifications and financial penalties of criminal road traffic offences (ie primarily common procedures 2-6 (record violation through to set penalty)). As these procedures are entirely related to community transport policy, a European Parliament and Council Directive under the first pillar is considered to be the most appropriate form of legislation. According to the EU Treaty (article 47), the EC Treaty (first pillar) has preference over the EU Treaty (third pillar) which means that legal instruments from the EC Treaty need to be used and not those from the EU Treaty.

Tier 1 Common Procedures CoDD62 COPEN63 3DLD64

0 General

1 Registration documentation 3

2 Record violation

3 Identify vehicle Scope for a 4 Identify driver/owner new Directive 5 Notify driver/ owner/operator

6 Set penalty

7 Impose penalty

8 Enforce penalty 3 3

9 Close enforcement process

Figure 24 Proposed legislative package to implement common approach

As far as is possible, new legislation should be applicable to non-financial penalties other than driving disqualifications. However, as the use of other non-financial penalties is not universal

62 European Convention on Driving Disqualifications (98/C 216/01), 17 June 1998 63 European Council Framework Decision 2005/214/JHA on the Application of the Principle of Mutual Recognition to Financial Penalties, 24 February 2005 64 Report on the proposal for a directive of the European Parliament and of the Council on driving licences, (COM(2003)0621 – C5-0610/2003 – 2003/0252(COD)), ommittee on Transport and Tourism, 3 February 2005

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across the EU-25 and even where they are used, their application can be substantially different, incorporating the cross-border enforcement of these kinds of penalties is not considered to be a priority action at this time. Where there is willingness to pursue the mutual recognition of other kinds of non-financial penalties other than driving disqualifications, this should be on a bi- or multi-lateral basis similar to that being explored in principle between the UK and Ireland. This should remain until such time as their application across the EU becomes more uniform.

CAPTIVE Recommendation 8

Implementation of the common approach to the cross-border enforcement of penalties imposed on non-resident violators of road traffic laws will require that:

• 3DLD must be agreed, adopted and put into effect by all Member States as a matter of urgency

• States must take all necessary measures to comply with COPEN by 22 March 2007 (as specified in Article 20 of Council Framework Decision 2005/214/JHA, 24 February 2005)

• Adoption of the CoDD must also be pursued as a matter of urgency

• A new European Parliament and Council Directive under the first pillar is required to provide a legal basis for the elements of the common approach which are outside the scope of 3DLD, CoDD and COPEN (ie primarily common procedures 2-6 (record violation through to set penalty)).

If CoDD cannot be implemented by the EU-25, action should be taken to turn it from a Convention to a Framework Decision under the third pillar.

9.4 Interim steps

One of the key issues relating to the implementation of a common approach to cross-border enforcement across Europe is timescale. Experience with previous directives and agreements suggest that the time it takes to progress from the first Commission proposal to legislation entering into force rarely takes less than three years and is usually much longer. Reaching agreement on CoDD for example, took seven years of discussions and three years of detailed negotiations between the EU-1565. This, together with the timeframe for adopting CoDD into national law has been a barrier for some States.

Contrast this to today’s reality where States are becoming increasingly aware of the need to start work towards a common approach to cross-border enforcement in a structured way. Prompt action is necessary if this growing political awareness and support is to be capitalised on in a meaningful way.

65 http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/jha/08856EN8.doc.htm

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In advance of a new Directive becoming operational across the EU, a series of interim steps could be adopted which could:

• Act as a precursor to the implementation of selected elements of the common approach

• Introduce selected measures which could improve the effectiveness of enforcement as a deterrent to non-resident violators

• Capitalise on the growing political support by maintaining current momentum and achieving a series of short-term ‘wins’

• Provide feedback into the definition of any new Directive so that it becomes more aligned with real-world operational practices and its eventual implementation represents less of a significant step-change for States

• Help redress the balance between the time it will take to implement a new Directive and competing national priorities.

A number of candidate interim steps are described below.

Develop and expand existing islands of cooperation

As described in Section 9.3, agreements which form the basis for the current islands of

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cooperation offer opportunities for further development and expansion. While not ideal as a basis for pan-EU legislation (as discussed in Section 9.3), these agreements can provide an effective basis for growing the existing islands of cross-border cooperation.

The key to the success of this bottom-up approach as an interim step is twofold:

• There is regular liaison between States participating in these islands of cooperation and those responsible for drafting any new Directive on cross-border enforcement. This liaison will be targeted towards ensuring that real-world experiences from the implementation and operation of the islands of cooperation can be used to shape the new Directive

• A plan for convergence of each of these approaches towards the common approach and requirements laid down in new Directive is agreed and pursued.

Schengen states would be ideal participants in any expansion of existing islands as they already have a legal basis for cooperation.

Exchanging information

Cooperation between vehicle and driver registration agencies across Europe would facilitate the exchange of information on vehicles and non-resident violators’ driving licences on an ad- hoc basis to allow more SOOs to reach the notification stage of the enforcement chain.

Recording details of penalties which cannot be imposed or enforced

SOOs should record all relevant information they are able to obtain regarding violations committed by non-residents and inform the relevant SORs regardless of whether or not the SOO is able to enter the formal legal prosecution stage. If the SOO is able to set a penalty on a non-resident violator but is unable to impose or enforce it, the relevant SOR should be informed of the details of the legal proceedings and the penalty set. The SOR should record this information for future reference.

Where a SOR receives notification from a SOO of a penalty which cannot be imposed or enforced on a non-resident, the SOR should notify the violator advising them that they have been caught and details of their violation recorded.

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SOOs which have a policy of retaining the driving licences of non-resident violators for duration of their stay in the SOO and returning it to the violator when they leave the SOO should be encouraged to return the licence via nominated authority of SOR rather than direct to violator.

Allowing third party checks on driving licence records

In interim stages, insurance companies should be encouraged to check with national authorities to see if driver has any violations registered in other States prior to issuing new driver/vehicle insurance.

CAPTIVE Recommendation 9

In the short-term, one or more interim solutions to the cross-border enforcement of penalties imposed on non-resident violators of road traffic laws will be required in advance of the new legislative package. Any interim solution should build on existing operational experience and agreements and seek to start the implementation of elements of the common approach to cross-border enforcement. Experiences from the definition, implementation and operation of any interim solution should be used to shape the new legislative package.

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10 CAPTIVE IMPLEMENTATION PLAN –STANDARDS AND TOOLS

10.1 Introduction

Removing the technical, operational and legal barriers to cross-border enforcement through the implementation of the common approach will change aspects of enforcement agencies’ current work. A key part of implementing the common approach is therefore to provide common technical standards and tools which will support enforcement agencies’ in carrying out their day-to-day operations in the future.

This section of the report identifies these standards and tools and highlights what is required to implement them across the EU.

Figure 25 Actions to define and develop technical standards and tools to support the common approach

10.2 Step 9 – Supporting standards and tools

The need for common technical standards and supporting tools across the EU

The implementation of common technical standards and tools across the EU is necessary as:

• they are essential to ensuring consistent implementation and operation of the common approach

• they provide one of the means for operational cooperation between States

• they will provide a minimum degree of automation to the processing of non-resident violators. The expected numbers of non-resident violations will make fully manual processing effectively impossible. A minimum degree of automation is necessary to ensure that processing of non-resident violations in the numbers anticipated can be achieved – increasing degrees of automation will improve the effectiveness of processing accordingly

• they will help manage the ‘additional’ workload on operational personnel

• they will enforce the data management and audit controls necessary where processing and penalty handling are governed by requirements laid down in national legislation.

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In some cases, the need for tools is enshrined in EU legislation. For example, Article 8 Paragraph 5(d) of 3DLD requires that “…the Commission shall, with the assistance of the Member States, design, implement and operate a network for the international exchange of driving licence data between Member States”66.

Supporting technical standards

In the context of cross-border enforcement, common technical standards relate to the exchange of data between competent authorities in Member States. Common technical standards are needed to define:

• permissible exchanges of data between States for the purposes of processing road traffic violations committed by non-residents and for setting, imposing and enforcing penalties for these violations

• permissible content of these data exchanges

• common terminology and meaning of data elements used in these exchanges

• format of permissible data exchanges

• means for ensuring language-independence.

The use of common technical standards at this level is fundamental to achieving State-State interoperability. Therefore, standards must be adhered to by all States across the EU if the common approach is to work as planned.

Supporting tools

Supporting tools are the mechanisms for implementing the common technical standards. While all States should be strongly encouraged to use supporting tools, from an operational perspective, there is no absolute requirement for them to do so. They should be free to develop their own national tools if they consider it necessary as long as anything they use on a national basis can interface with other States’ tools and handle data exchanges based on the common technical standards.

As discussed in Section 3, there are several initiatives already underway which aim to provide different functions in support of cross-border enforcement. These are shown in Figure 26.

66 Report on the proposal for a directive of the European Parliament and of the Council on driving licences, (COM(2003)0621 – C5-0610/2003 – 2003/0252(COD)), Commission Committee on Transport and Tourism, 3 February 2005

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Project/System Application to cross-border enforcement Status

EUCARIS • Allows exchange of vehicle and driving licence • Operational since registration information between registration authorities 1995 of participating countries. In the near future, vehicle owner/holder data will also be exchanged • Technical and functional infrastructure is expected to be used by the signatories to the Prüm Convention to exchange vehicle and owner/holder data • Funded through membership subscription • Operational since 1994.

RESPER • Three-phase project developing a system for • Feasibility Study exchanging information between driving licence complete January authorities in Member States 2005 • Will focus on the exchange of driving licence data for the purposes of road traffic-related enforcement • Functional and non-functional requirements are still under consideration

REGNET • Will examine feasibility of a network linking the national • TBC vehicle registration authorities in the EU and the EEA to exchange information on number plates and re- registered vehicles

eNFORCE • Proposed as a State-to-State enforcement data • Pre-operational exchange system version to be • Concept developed and demonstrated as part of developed and VERA2 tested as part of VERA3

Figure 26 Potential supporting tools in development or operation

Some or all of these are expected to provide the basis for the supporting tools necessary to support the common approach. However, in order to do this, they must all meet a number of key operational criteria as follows:

• all tools must be capable of operating in a language-independent manner

• tools should comply with existing European recommendations for the development of open-systems

• ease of operation is fundamental – the need to move data from one discrete system to another to process a record of a violation must be avoided. Ideally, operators should have a common interface to these supporting tools – interfaces between systems should be totally transparent to the user

• data entry must be as automated as possible - double-entry of data must be avoided

• hardware platform independent

• device independent – for example, a number of the services provided via these tools should be available to enforcement officers in their vehicles through mobile devices

• communications platforms must be available to public authorities across the EU

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Implementing common technical standards and supporting tools

Work undertaken to date has provided a valuable basis on which to build. However, much of this work has been conducted in semi-isolation and as a consequence, the requirements against which each one of these has been built and therefore, the technical compatibility of each of these initiatives is not clear. Similarly, scope for integration is not clear. There is also potential overlap between what each of the initiatives can provide. In short, there is a very real danger of technical and operational incompatibility in an area vital to the delivery of the common approach to cross-border enforcement.

In order to address this situation and ensure that future systems development can meet the need for common technical standards and supporting tools, CAPTIVE recommends that the Commission needs to initiate a number of tasks as a matter of urgency. These are:

• As part of establishing the COSTAG (as described in Section 7.3), a panel of experts should be established to advise the COSTAG and The Commission on technical aspects of the common technical standards and supporting tools (see Figure 27). Referred to as the ‘Technical Advisory Group’ for the purposes of this Report, this panel is intended to develop a consistent overview of ongoing technical developments and ensure that they converge to an agreed position with regard to the services they provide and the part of the common approach they cover.

Figure 27 Outline of internal Commission coordination and involvement of stakeholders with Technical Advisory Group

• A comprehensive update on the status of each of these activities needs to be prepared and documentation available from each needs to be reviewed in detail to understand work completed to date

• An EU-wide strategy for the development and implementation of common technical

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standards and supporting tools needs to be drafted, reviewed and agreed. This should look at the need for common technical standards and supporting tools from a users’ perspective – ideally, users want to minimise the number of systems they have use to access all the cross-border enforcement functions necessary. Therefore, this strategy needs to:

− Consolidate the user requirements used to develop REGNET, RESPER and eNFORCE as a minimum

− Consolidate the operational requirements for the common approach (based on those outlined in Annex III)

− Build consensus on the overall system architecture for the delivery of the common approach

− Examine the extent to which the ongoing systems activities can comply with the agreed systems architecture

− Prepare convergence plans to help deliver the tools in a coordinated manner while still respecting each project’s individual contractual arrangements

• Common technical standards need to be developed based on the work already undertaken to-date and on the consensus achieved on the Strategy. This should include:

− interface design

− enforcement data model

− enforcement data dictionary

• the development and deployment plans for each of the ongoing activities need to be incorporated into the Implementation Plan described in Section 12.

In the longer term, consideration needs to be given to common maintenance and upgrade regimes.

CAPTIVE Recommendation 10

A Technical Advisory Group should be established as a sub-group of the COSTAG. This Technical Advisory Group should consolidate the relevant systems work undertaken to date on REGNET, RESPER and eNFORCE as a minimum. It should support the preparation of a common technical standards and supporting tools strategy and the associated Common Technical Standards and ensure consistency in the technical aspects of delivering the common approach.

If these tasks cannot be successfully achieved and broad consensus reached, there is a very real danger that States will be faced with disparate non-compatible systems, different systems architectures and multiple operator interfaces. In short, without a coordinated approach, there is a very real danger that the systems aspects of data exchange become a barrier to cross- border enforcement in themselves.

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11 CAPTIVE IMPLEMENTATION PLAN - IMPLEMENTING, OPERATING AND MONITORING THE COMMON APPROACH

11.1 Introduction

Once a common approach to cross-border enforcement has been defined and agreed and once a clear legal basis has been established for all its elements, attention can focus on implementation, operation and monitoring.

This section describes the actions that are necessary in this area. These actions are also summarised in Figure 28.

Figure 28 Actions to implement, operate and monitor the common approach

11.2 Step 10 - Implementing and operating the common approach

Implementation of common operational procedures, the interface procedures and the common (minimum) operational standards will be based on the specific requirements of a new Directive on cross-border enforcement. This will require the Commission and Member States to undertake a series of implementation actions including enacting new national legislation to address the requirements of the new Directive.

The common approach to cross-border enforcement will only be truly effective once the Commission and all States have successfully completed these actions. In order to determine when this situation can be reached, the Commission and States should be required to produce their own plans for implementation which for States, should include anticipated timescales for transposition of Directive into national legislation and requirements for new national legislation to support requirements.

The common operational procedures and the common (minimum) operational standards should be implemented in accordance with guidance issued by the Commission/COSTAG in support of the new Directive. National agencies will have responsibility for detailed definition and implementation of interface procedures as these will involve national decisions as to how

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Directive’s requirements are met and consideration as to whether or not new national legislation is required.

States should be required to inform the COSTAG (via the Commission) once they consider they have met the requirements of the new Directive. Operation should commence once the Commission and two or more States have successfully met their requirements with other States becoming operational as soon as they are ready. Independent evaluators could be used to determine whether or not States have met the requirements and are ready to commence formal operations.

11.3 Step 11 - Monitoring and feedback

Monitoring will be equally important once full operations have commenced. The aim of monitoring will be to determine the operational effectiveness of the common approach and to identify and recommend modifications for improvements. This will also involve the periodic review of performance statistics from each State in order to provide a quantitative assessment of effectiveness.

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12 CONSOLIDATED FIVE YEAR IMPLEMENTATION PLAN

12.1 Introduction

This section provides a consolidated plan for the implementation of all elements of the common approach as described in Sections 7 to 10. It describes the specific actions required for each of the four levels of the CAPTIVE Implementation Plan (preparatory and support actions, defining and agreeing the common approach, establishing the legal basis for each element of the common approach and implementing, operating and monitoring the common approach in each State).

An approximate timeline is provided for each activity – this identifies the year(s) in which CAPTIVE recommends each activity is carried out. Key dependencies are also identified for each activity. Finally, stakeholders who should ideally be involved in each activity’s implementation are identified with the stakeholder organisation considered to be most appropriate to take a lead highlighted in bold.

12.2 Preparatory and support actions

This section includes plans for implementing:

• Coordination and monitoring activities

• Activities targeted towards understanding and building political support

• Stakeholder participation

Coordination and monitoring

Activities Report Timeline Dependencies Stakeholder reference involvement

Establish mechanism for Section Year 1 • Modifications arising from • EC DGTREN improving strategic 7.2 EC review of CAPTIVE coordination between recommendations complete Directorate Generals

Implement mechanism Section Year 1 • Agreement on coordination • EC DGTREN, DGJLS, 7.2 internal mechanism (DGINFSO, DGEnterprise)

Internal coordination within Section Year 1-5 • Coordination mechanism • EC DGTREN, DGJLS, EC 7.2 implemented (DGINFSO, DGEnterprise)

Facilitating EU-level Section Year 1-2 • Agreement on all aspects of • EC DGTREN, DGJLS, implementation activities 7.2 common approach (DGINFSO, DGEnterprise)

Facilitating EU-level Section Year 1-4 • Agreement on all aspects of • EC DGTREN, DGJLS, standard-setting activities 7.2 common approach (DGINFSO, DGEnterprise)

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Coordination and monitoring

Activities Report Timeline Dependencies Stakeholder reference involvement

Facilitating further EU-level Section Year 1-5 • Further research and • EC DGTREN, DGJLS, research and development 7.2 development needs (DGINFSO, identified DGEnterprise) • Agreement on all aspects of • COSTAG common approach

Benchmarking of current Section Year 1 • Modifications arising from • EC DGTREN situation 7.2 EC review of CAPTIVE • Member States recommendations complete

Prepare EU Section Year 1-2 • Modifications arising from • COSTAG Implementation Plan based 7.2 EC review of CAPTIVE • EC DGTREN, DGJLS on proposals made by recommendations complete CAPTIVE

Monitoring States’ progress Section Year 3-4 • New legislation entered into • EC DGTREN towards meeting 7.2 force • COSTAG requirements of new • Monitoring regime agreed legislation during and in place implementation phase

Monitoring EC’s progress Section Year 3-4 • Monitoring regime agreed • COSTAG towards meeting 7.2 and in place requirements of new legislation during implementation phase

Political support

Activities Report Timeline Dependencies Stakeholder reference involvement

Determine current political Section Year 1 • None • EC DGTREN will in each Member State 7.4

Actions to raise profile of Section Year 1-2 • Current political will being • EC DGTREN cross-border enforcement 7.4 established • COSTAG and its benefits • Member States

Actions to maintain profile Section Year 3-5 • Current political will being • EC DGTREN of cross-border 7.4 established • COSTAG enforcement • Member States

Stakeholder participation

Activities Report Timeline Dependencies Stakeholder reference involvement

Confirm key stakeholders Section Year 1 • Modifications arising from • EC DGTREN (based on CAPTIVE 7.3, EC review of CAPTIVE • Member States recommendations) Annex VI recommendations complete

Initiate COSTAG through Section Year 1 • Start of VERA3 • EC DGTREN VERA3 7.3 • VERA3 partners (Early Adopters)

Define and agree COSTAG Section Year 1 • Initiation of COSTAG • EC DGTREN terms and conditions 7.3, • COSTAG Section • Member States 8.5

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Stakeholder participation

Activities Report Timeline Dependencies Stakeholder reference involvement

Review and agree Section Year 1 • COSTAG operational • EC DGTREN Implementation Plan 7.3 • Modifications arising from • COSTAG EC review of CAPTIVE recommendations complete

Agree mechanism for Section Year 1 • COSTAG operational • EC DGTREN securing participation of 7.3 • Modifications arising from • COSTAG other stakeholders EC review of CAPTIVE • Member States recommendations complete

Reviewing States’ Section Year 3-4 • COSTAG operational • EC DGTREN progress towards 7.3 • Common approach agreed • COSTAG implementation of • Member States common approach

Ongoing review of further Section Year 2-5 • COSTAG operational • EC DGTREN research and development 7.3 • COSTAG needs • Member States

12.3 Defining and agreeing the common approach

This section includes plans for implementing:

• Activities relating to establishing the vision for cross-border enforcement

• Definition and agreement of the common approach

• Definition and agreement of the common operational procedures

• Establishing the requirements for elements of the common approach

Vision

Activities Report Timeline Dependencies Stakeholder reference involvement

Review CAPTIVE Section Year 1 • Modifications arising from • COSTAG proposals for vision for 8.2 EC review of CAPTIVE cross-border enforcement recommendations complete

Agree vision Section Year 1 • Modifications arising from • COSTAG 8.2 EC review of CAPTIVE • EC DGTREN, DGJLS recommendations complete • Member States

Common approach

Activities Report Timeline Dependencies Stakeholder reference involvement

Review need for common Section Year 1 • Modifications arising from EC • COSTAG approach 8.3 review of CAPTIVE recommendations complete • Vision agreed

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Common approach

Activities Report Timeline Dependencies Stakeholder reference involvement

Review CAPTIVE Section Year 1 • Need for a common approach • COSTAG proposals for common 8.3 confirmed • EC DGTREN, DGJLS approach • Modifications arising from EC review of CAPTIVE recommendations complete • Vision agreed

Agree common approach Section Year 1 • Modifications arising from EC • COSTAG 8.3 review of CAPTIVE • EC DGTREN, DGJLS recommendations complete

Common operational procedures

Activities Report Timeline Dependencies Stakeholder reference involvement

Review CAPTIVE Section Year 1 • Modifications arising from • COSTAG proposals for common 8.4 EC review of CAPTIVE • EC DGTREN, DGJLS operational procedures recommendations complete • Member States • Common approach agreed

Modify and agree Section Year 1 • Modifications arising from • COSTAG CAPTIVE proposals for 8.4 EC review of CAPTIVE • EC DGTREN, DGJLS common operational recommendations complete • Member States procedures

Identify and agree where Section Year 1 • Agreed common • COSTAG interface procedures are 8.4 operational procedures • EC DGTREN, DGJLS necessary • Member States

Identify and agree where Section Year 1 • Agreed common • COSTAG common (minimum) 8.4 operational procedures • EC DGTREN, DGJLS operational standards are • Agreed interface • Member States necessary procedures

Requirements

Activities Report Timeline Dependencies Stakeholder reference involvement

Review CAPTIVE Section Year 1 • Modifications arising from • COSTAG proposals for requirements 8.5 EC review of CAPTIVE recommendations complete • Common approach agreed

Define and agree Section Year 1 • Modifications arising from • COSTAG requirements for common 8.5 EC review of CAPTIVE • Member States operating procedures recommendations complete • Common approach agreed • Agreed common operational procedures

Define and agree Section Year 1 • Modifications arising from • COSTAG requirements for interface 8.5 EC review of CAPTIVE • Member States procedures recommendations complete • Common approach agreed • Agreed interface procedures

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Requirements

Activities Report Timeline Dependencies Stakeholder reference involvement

Define and agree common Section Year 1 • Modifications arising from • COSTAG (minimum) operational 8.5 EC review of CAPTIVE • Member States standards recommendations complete • Common approach agreed • Agreed common (minimum) operational standards

12.4 Establishing a legal basis for the common approach

This section includes plans for implementing the legal basis for all elements of the common approach.

Legal basis

Activities Report Timeline Dependencies Stakeholder reference involvement

Review proposals for new Section Year 1 • Modifications arising from • COSTAG legislation made by 9.2 EC review of CAPTIVE • EC DGTREN, DG JLS CAPTIVE recommendations complete • Common approach agreed

COSTAG to establish Section Year 1 • COSTAG operational • COSTAG Member States’ views on 9.3 • EC DGTREN, DG JLS CoDD

Agree proposals for Section Year 1 • Modifications arising from • COSTAG legislative package made 9.3 EC review of CAPTIVE • EC DGTREN, DG JLS by CAPTIVE (or recommendations complete alternative) • Common approach agreed • Member States views on CoDD understood

Formal process for Section Year 1-2 • Proposals for legislative • EC DGTREN, DG JLS passing new EU 9.3 package agreed legislation • Other precursor steps to formal EU legislation complete

Define permissible Interim Section Year 1 • Modifications arising from • Member States Steps 9.4 EC review of CAPTIVE • EC DGTREN, DG JLS recommendations complete • COSTAG • Common approach agreed

Define and agree a Section Year 2-3 • Interim steps agreed • COSTAG Convergence Plan 9.4 • EC DGTREN, DG JLS • Member States

Implement and operate Section Year 1-4 • Convergence plan agreed • Common technical Interim Steps 9.4 standards complete • Implementation Plan complete

12.5 Defining and developing supporting standards and tools

This section includes plans for implementing:

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• All activities relating to the development and agreement of common technical standards for cross-border enforcement data exchange

• Activities relating to development and implementation of the supporting tools.

Standards and tools

Activities Report Timeline Dependencies Stakeholder reference involvement

Establish COSTAG Section Year 1 • COSTAG operational • COSTAG Technical Advisory Group 10.2 • EC DGTREN, DG INFSO

Update status of all Section Year 1 • COSTAG operational • COSTAG ongoing technical activities 10.2 • EC DGTREN, DG related to cross-border INFSO enforcement

Define and agree strategy Section Year 1 • Status update complete • COSTAG for development and 10.2 • Common approach agreed • EC DGTREN, DG implementation of common • Agreed common INFSO technical standards and operational procedures, • Member States supporting tools interface procedures and common (minimum) operational standards

Define and agree common Section Year 1-2 • Standards and tools • COSTAG technical standards for 10.2 strategy complete and • EC DGTREN, DG cross-border enforcement agreed INFSO • Member States

Consolidate individual Section Year 1-2 • Common technical • COSTAG development and 10.2 standards complete in draft • EC DGTREN, DG deployment plans into • Implementation Plan INFSO overall Implementation complete in draft • Member States Plan

Establish common Section Year 2 • Common technical • EC DGTREN, DG commissioning regime 10.2 standards complete INFSO • Implementation Plan • COSTAG complete

Establish Common Section Year 2 • Common technical • EC DGTREN, DG maintenance and upgrade 10.2 standards complete INFSO regime • Implementation Plan • COSTAG complete

12.6 Implementing, operating and monitoring the common approach

This section includes plans for implementing:

• All activities relating to the Commission’s and States’ implementation of the common approach

• Activities relating to monitoring of impact of the common approach on the effectiveness of cross-border enforcement.

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Implement and operate

Activities Report Timeline Dependencies Stakeholder reference involvement

States’ to prepare National Section Year 2 • Proposals for legislative package • Member States Implementation Plans 11.2 agreed • Other precursor steps to formal EU legislation complete • Common approach agreed • Agreed common operational procedures, interface procedures and common (minimum) operational standards

Consolidation into EU Section Year 2-4 • National Implementation plans • COSTAG Implementation Plan 11.2 complete • EC DGTREN, DG JLS

Transposition of new Section Year 3-4 • Other precursor steps to formal • Member States legislation into national law 11.2 EU legislation complete

New legislation effective in Section Year 5 • Adoption of new legislation • Member States all States 11.2 complete

Define and agree national Section Year 3-4 • Proposals for legislative package • Member States interface procedures 11.2 agreed • Common approach agreed • Agreed common operational procedures, interface procedures and common (minimum) operational standards

Implement national Section Year 3-4 • National interface procedures • Member States interface procedures 11.2 defined and agreed

Implement common Section Year 3-4 • Implementation of national • COSTAG approach 11.2 interface procedures complete • EC DGTREN, DG JLS • Member States

Start of operation of Section End Year 4 • Two or more States confirmed as • Member States common approach 11.2 having met requirements of new legislation • Commissioning of national procedures complete • Commissioning of standards and supporting tools complete

Monitoring and feedback

Activities Report Timeline Dependencies Stakeholder reference involvement

Monitoring regime defined Section Year 2 • COSTAG operational • COSTAG 11.3 • EC DGTREN, DG JLS • Member States

Monitoring operational Section Year 3-4 • Monitoring regime defined • COSTAG effectiveness of common 11.3 • Start of operation of common • EC DGTREN, DG approach approach JLS • Member States

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13 SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS

13.1 Addressing non-resident violators today

CAPTIVE has shown that despite a heightened profile due to increasing cross-border traffic, the growing use of vehicle registrations for different applications and growing public awareness, the imposition and enforcement of penalties on non-resident violations of road traffic rules has yet to be achieved at an EU level. The reality is that penalties are rarely enforced on non- resident violators, a situation which is in complete contrast to the principles of fair and consistent treatment of all European citizens and of proportionality as enshrined in the Treaty of European Union.

Despite a number of regional bi- and multi-lateral agreements around Europe which have shown that cross-border cooperation can be effective, a number of barriers to effective EU-wide cross- border enforcement remain to be addressed. These include legal, organisational, operational and penalty-specific barriers. There is little prospect of this unsatisfactory situation changing unless actions are put in place to address these barriers.

13.2 The way forward – cooperation and coordination

CAPTIVE has shown that the basis for implementing effective cross-border enforcement across the EU has to be consistent, effective and coordinated cross-border cooperation between Member States. CAPTIVE has therefore defined the concept of a ‘common approach’ to cross-border enforcement which aims to ensure fair and equal treatment of all road users and to help improve road safety by implementing the theoretical benefits of cross-border cooperation in an operational environment. The CAPTIVE common approach comprises:

• common operational procedures

• interface procedures

• common (minimum) operational standards

Implementing the common approach across the EU-25 will require multiple actions undertaken at different levels (ie pan-EU, regional, national and local) by different stakeholders and with a range of different timescales.

13.3 A plan for implementation

CAPTIVE has therefore defined a five-year Implementation Plan to identify the actions necessary and to organise them into a coherent plan. The Implementation Plan comprises actions at five levels:

• preparatory and support actions which:

− provide the coordination and management of the Plan through inter-DG coordination, Member State- coordination and benchmarking activities

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− facilitate the involvement of stakeholders in delivering the Plan including the establishment of a Core Stakeholder Group who will play a pivotal role in the development of cross-border enforcement across the EU-25

− build political support for the actions being taken

• defining and agreeing the common approach which will involve:

− agreeing a vision for cross-border enforcement

− agreeing the common approach

− agreeing requirements for the common operating procedures, the interface procedures and the common (minimum) operational standards

• provide a legal framework for all aspects of the common approach which will include implementation of 3DLD, implementation of COPEN by 22 March 2007 and full adoption of CoDD as priority actions and the introduction of new legislation to cover those elements of the common approach which are not currently addressed. It will also include adoption of a number of interim steps to enable some degree of cross-border cooperation in advance of the full legislative package being implemented

• defining and developing standards and tools to support the common approach

• implementing, operating and monitoring the common approach in each State.

13.4 Summary of the CAPTIVE recommendations

Figure 29 presents a summary of the CAPTIVE recommendations.

Recommendations

1 A common Europe-wide approach to the cross-border enforcement of penalties imposed on non- resident violators needs to be defined and agreed by all Member States. This common approach shall consist of:

• common operational procedures to be implemented by all Member States in the same manner • interface procedures which provide the link between the common operational procedures and existing national enforcement procedures • common (minimum) operational standards.

2 An Implementation Plan is necessary to set out all the actions that need to be carried out in order to develop, implement and operate all elements of the common approach to cross-border enforcement.

3 Actions to address the barriers to cross-border enforcement will need to be taken at different levels and by different groups of stakeholders. Careful coordination of these actions is vital. Responsibility for overall coordination and monitoring of these actions should lie with the European Commission as it is the only body competent to fulfil this role at the necessarily strategic level.

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Recommendations

4 Effective stakeholder participation in addressing and removing the barriers to cross-border enforcement is essential. A Core Stakeholder Group (COSTAG) should be established to help address priority issues and to agree on a mechanism for securing the effective participation of all other stakeholders across the EU.

5 The political will in each Member State to develop and implement a common, EU-wide approach to the cross-border enforcement of penalties imposed on non-resident violators of road traffic laws should be determined. Efforts should be directed towards raising the political profile of cross-border enforcement especially where it is currently is a low priority and to building EU-wide consensus on the need for a common approach to cross-border enforcement and a commitment to achieving this common approach within a specified period.

6 A vision for cross-border enforcement in Europe must be created and agreed. The vision should be around the dual themes of:

• Ensuring the fair and equal treatment of all road users regardless of where the violation takes place, where the vehicle is registered, which Member State the driver/owner legally resides in or which State issues the driver’s licence to drive and/or operate the vehicle • Ensuring cross-border enforcement’s contribution to improving road safety.

7 In order to ensure that the key processes which comprise the common approach are developed and implemented in a consistent manner across the EU, requirements for each of the common operational procedures and the interface procedures identified in the Implementation Plan need to be defined.

Requirements for the common operational procedures need to be defined and agreed by all stakeholders. Requirements for interface procedures to be implemented at a national level need to be defined and agreed within each Member State but with due reference to the requirements for the common operational procedures.

8 Implementation of the common approach to the cross-border enforcement of penalties imposed on non-resident violators of road traffic laws will require that:

• 3DLD must be agreed, adopted and put into effect by all Member States as a matter of urgency • States must take all necessary measures to comply with COPEN by 22 March 2007 (as specified in Article 20 of Council Framework Decision 2005/214/JHA, 24 February 2005 • Adoption of the CoDD must also be pursued as a matter of urgency • A new European Parliament and Council Directive under the first pillar is required to provide a legal basis for the elements of the common approach which are outside the scope of 3DLD, CoDD and COPEN (ie primarily common procedures 2-6 (record violation through to set penalty)). If CoDD cannot be implemented by the EU-25, action should be taken to turn it from a Convention to a Framework Decision under the third pillar.

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Recommendations

9 In the short-term, one or more interim solutions to the cross-border enforcement of penalties imposed on non-resident violators of road traffic laws will be required in advance of the new legislative package. Any interim solution should build on existing operational experience and agreements and seek to start the implementation of elements of the common approach to cross- border enforcement. Experiences from the definition, implementation and operation of any interim solution should be used to shape the new legislative package.

10 A Technical Advisory Group should be established as a sub-group of the COSTAG. This Technical Advisory Group should consolidate the relevant systems work undertaken to date on REGNET, RESPER and eNFORCE as a minimum. It should support the preparation of common technical standards and supporting tools strategy and the associated Common Technical Standards and ensure consistency in the technical aspects of delivering the common approach.

Figure 29 Summary of the CAPTIVE recommendations

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ANNEX I CAPTIVE GLOSSARY

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CAPTIVE Glossary

3DLD Third Driving Licence Directive - Report on the proposal for a directive of the European Parliament and of the Council on driving licences, (COM(2003)0621 – C5-0610/2003 – 2003/0252(COD)), Commission Committee on Transport and Tourism, 3 February 2005

CoDD Council of Europe Convention on Driving Disqualification, 17 June 1998 (C216/2)

COPEN European Council Framework Decision 2005/214/JHA on the Application of the Principle of Mutual Recognition to Financial Penalties, 24 February 20

EDES Enforcement Data Exchange System

EFC Electronic Fee Collection eNFORCE A formal network of agencies and organisations responsible for coordinating and managing the ‘operation’ of cross-border enforcement as well as monitoring its progress and ensuring the robustness of the services it supports

EU European Union

EU-25 25 Member States of the European Union

Executing State The Member State to which a decision has been transmitted for the purpose of enforcing a penalty on a non-resident violator (as defined in COPEN)

Issuing State The Member State in which a decision on the guilt (or otherwise) of a violator was taken (as defined in COPEN)

MoU Memorandum of Understanding

Non-resident violator For the purposes of cross-border enforcement of road traffic rules, a ‘non-resident violator’ is defined as being either: • an individual who does not have a ‘normal’ residence in the Member State where the violation took place, or • a driver whose vehicle is not registered in the Member State where the violation took place, or • a driver whose driving licence is not issued in the Member State where the violation took place

State of Offence The State where the offence is committed (adapted from the definition provided in the CoDD Art 1(b))

State of Residence The State where the violator is normally resident, is employed or is a citizen (adapted from the definition provided in the CoDD Art 1(c))

SOIP State of Offence Imposed Penalty – a penalty such as a fine which has to be imposed by the State of Offence

SOO State of Offence

SOR State of Residence

SRIP State of Residence Imposed Penalty - a penalty such as withdrawal of a violator’s

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driving licence or use of penalty points which has to be imposed by the State of Residence

VERA Video Enforcement for Road Authorities

Violator For the purposes of CAPTIVE and depending on the circumstances and the nature of the offence, a violator can be one or more of: • the vehicle driver • the vehicle owner • the vehicle operator

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ANNEX II PROJECT TEAM

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Project Team

Partner State Contact Email

IBI Group (UK) Limited UK Colin Wilson (Project [email protected] Coordinator) [email protected] Charmaine Coutinho

CTU CZ Miroslav Svitek [email protected] Jakub Rajnoch [email protected]

LISITT Universitat de Valencia E Leo van den Berg [email protected] Ricard Martinez [email protected]

Rapp Trans supported by Carte CH/F Philipp Jordi (CH) supported [email protected] Blanche Conseil and Panthéon- by Gildas Baudez (F), [email protected] Assas Paris II University Professor Jacques-Henri Robert (F) and Bertrand [email protected] Paillard (F) [email protected]

TRL Limited UK Eric McRae [email protected]

Experts

Expert State Contact Email

Association of Chief Police UK Robert Hammond [email protected] Officers of England and Wales Andy Rooke [email protected]

An Garda Síochána IRL Michael Brosnan [email protected]

Korps Landelijke Politiediensten NL Jan Malenstein [email protected]

RDW Strategie en Externe NL Idske Dijkstra [email protected] Ontwikkeling Arjan van Vliet [email protected]

Servei Catala de Transit E Susana Diaz [email protected] (Generalitat de Catalunya)

The Project Team would also like to acknowledge the support and advice provided by the following

• Fred Hackman (UK Department for Transport) • Leif Sorensen (Danish National Police) • Andy Wong (UK Driving and Vehicle Licencing Agency) • Martin Gubby (Transport for London)

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ANNEX III REQUIREMENTS FOR LEVEL 2 COMMON PROCEDURES

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Requirements for Tier 2 Common Procedures

Tier 2 Common Requirements* Existing EU legal basis** Strategic actions*** Procedures

0.1 General 0.1.1 States to identify competent authority(ies) for each • COPEN Art 2 for financial • New EU legislation must enable this requirement procedure penalties • Competent authorities to be identified in each Member State

0.1.2 States to provide each other with details of its • COPEN Art 2 for financial • New EU legislation must enable this requirement competent authorities for each procedure penalties

0.1.3 All information exchanges must be made in a - • New EU legislation must enable this requirement common, language-independent format • Enforcement data dictionary to be defined and agreed at EU level • Format for all information exchanges to be agreed at EU level

0.1.4 Mechanisms for exchanging information must be - • New EU legislation must enable this requirement electronic • System(s) for sharing information between States to be developed and implemented at EU level

0.1.5 SOOs and SORs must maintain audit trails of all - • New EU legislation must enable this requirement information exchanges • Information required to be kept for audit purposes to be defined and agreed at EU level

0.1.6 All information exchanges must comply with rules for • National legislation for specific • None data protection, data handling and data exchange requirements • Over-arching EU legislation on data protection

0.1.7 Information retrieval, exchange and storage • National legislation for specific • None processes must ensure evidential integrity in requirements accordance with national requirements

1.1 Process 1.1.1 On receipt of an application for a new or replacement • 3DLD Art 8.5, Art 12 and Art 16 • Content of information requests and responses for driving application for driving licence, SOR needs to be able to check for driving licences licence checks to be agreed at EU level documentation whether applicants have one or more undeclared driving licences issued by other States, and whether they have any undeclared current or pending driving- related penalties

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Tier 2 Common Requirements* Existing EU legal basis** Strategic actions*** Procedures

1.1.2 If it is positively confirmed that applicant holds one or • 3DLD Art 8.5, Art 12 and Art 16 • Content of information requests and responses for driving more valid driving licences issued by another for driving licences licence checks to be agreed at EU level State(s), SOR needs to obtain details of the valid driving licence(s) from those States in question

1.1.3 If it is positively confirmed that the applicant is subject • 3DLD Art 8.5, Art 12 and Art 16 • Minimum content of requests and responses for information on to existing penalties and/or pending penalties in one for driving licences penalties to be agreed at EU level or more States, the SOR needs to be able to obtain details of the penalties from those States in question

1.1.4 In cases where applicants have another licence(s) • 3DLD Art 8.5 for driving licences • States’ processes to be modified to take requirement into and/or current or pending penalties which are not account declared, applications should always be rejected

1.1.5 Applications for other documentation to be processed • National legislation • New EU legislation must enable this requirement for all in accordance with national procedures but documentation consulting with other States’ records as necessary • States’ processes to be modified to take requirement into account

1.2 Issue 1.2.1 Information describing documentation issued (for - • New EU legislation must enable this requirement for all documentation example, driving licence number, date of issue, etc) documentation to be defined • Information describing documentation issued to be defined and agreed at EU level

1.2.2 Documentation to be issued in accordance with • National legislation • 3DLD to be implemented by all States national/EU formats • 3DLD Art 1 for driving licenses

1.2.3 Record(s) of information describing documentation • National legislation • States to ensure that national records can store information issued to be made describing documentation issued

1.3 Cancel 1.3.1 SOR to amend all records accordingly when • National legislation • None documentation documentation cancelled

2.1 Record minimum 2.1.1 Minimum set of information required to proceed with - • New EU legislation must enable this requirement for all common data for processing of non-resident violators is defined. This violations violation should include vehicle details such as evidence of the • Minimum set of information required to proceed with vehicle identifier (typically the licence plate) and the processing of non-resident violators to be defined and agreed State of registration, violation details such as time, at EU level location, details of what happened, etc. and driver registration details (such as driving licence details, etc)

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Tier 2 Common Requirements* Existing EU legal basis** Strategic actions*** Procedures

2.1.2 Record must ensure that minimum set of information - • New EU legislation must enable this requirement for all required to proceed with processing of non-resident violations violators is included or can be extracted in • States to ensure that national legislation requires the recording accordance with national legislation and evidential of minimum set of information required to proceed with standards processing of non-resident violators to be defined and agreed

2.1.3 Storage and transfer of record for further processing • National legislation for specific • None must ensure evidential integrity of data requirements

2.1.4 Each record properly-prepared by the SOO must be • COPEN Art 6 for financial • EU legislation required to allow mutual recognition of records accepted by all other States as sufficient evidence of penalties (regardless of penalty) violation

3.1 Identify State 3.1.1 Vehicle identifier must be present, clear and of - • Need EU legislation to require format of vehicle identifier where vehicle identifiable format on all vehicles registered 3.1.2 SOR identifier must be present, clear and of - • Need EU legislation to require format and presence of SOR identifiable format on all vehicles identifier

3.1.3 SOO must extract SOR identifier and vehicle • National legislation for specific • Need EU legislation to ensure that combination of vehicle identifier from record requirements identifier and SOR identifier is unique

3.2 Request vehicle 3.2.1 SOO must understand where to send requests for - • New EU legislation must enable this requirement in each State registration vehicle registration information in each candidate information SOR

3.3 Access vehicle 3.3.1 SOO’s request for information made to one or more - • New EU legislation must enable this requirement for all States registration candidate SORs based on entry of vehicle identifier • Allowable content of information requests and responses to be information must return details of vehicle registration and agreed at EU level classification, owner/keeper registration and vehicle • States’ information records to allow return of details of vehicle insurance registration and classification, owner/keeper registration and vehicle insurance on entry of vehicle identifier information

3.3.2 EU-wide ‘service level agreements’ governing SOR’s - • New EU legislation must enable this requirement for all States permissible responses to SOO requests for vehicle registration information must be established

3.4 Identify 3.4.1 SOO must extract owner/keeper information from • National legislation for specific • None driver/owner/kee information sent from SOR requirements per SOR

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Tier 2 Common Requirements* Existing EU legal basis** Strategic actions*** Procedures

4.1 Request 4.1.1 SOO must understand where to send requests for - • New EU legislation must enable this requirement for all States information on driver registration information in each SOR driver registration

4.2 Access driver 4.2.1 SOO’s request for information made to one or more - • New EU legislation must enable this requirement for all States registration candidate SORs based on entry of driver • Allowable content of information requests and responses to be information identification details (name, address or driving licence agreed at EU level number for example) must return details of driver’s • States’ information records to allow return driver’s name, name, address, driving licence, active penalties and address, driving licence, active penalties and pending pending penalties penalties on entry of driver identification details

4.2.2 EU-wide ‘service level agreements’ governing SOR’s - • New EU legislation must enable this requirement for all States permissible responses to SOO requests for driver registration information must be established

4.2.3 Information retrieval and response processes must • National legislation for specific • None be in accordance with SOR’s requirements for requirements information handling and ensuring evidential integrity

5.1 Prepare 5.1.1 Notification must be legally valid in SOO and must be • National legislation for specific • New EU legislation must enable this requirement for all States notification prepared in accordance with SOO procedures and requirements regulations

5.1.2 SOO must make every endeavour to ensure that the • COPEN Art 16 for financial • New EU legislation must enable this requirement for all States recipient can understand the notification (eg by penalties • States to ensure that notifications can be prepared in different issuing notification in legal language of the SOO and languages the official language of the SOR)

5.2 Issue notification 5.2.1 Delivery of the notification must comply with legal • National legislation for specific • New EU legislation must enable this requirement for all States requirements of the SOO requirements • CoDD Art 8.2 for driving disqualification

5.2.2 Delivery of the notification must take account of ‘local’ • CoDD Art 8.2 for driving • New EU legislation must enable this requirement for all States or ‘national’ requirements for the delivery of legal disqualification • Requirements for the delivery of legal documents in each documents State to be defined

5.3 Allowable 5.3.1 Recipients must have a legal responsibility to - • New EU legislation must make this a requirement for all States responses to respond to notification notification 5.3.2 Permissible responses must be practical for recipient - • New EU legislation must make this a requirement for all States to take and all permissible responses

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Tier 2 Common Requirements* Existing EU legal basis** Strategic actions*** Procedures

5.3.3 Opportunities for a non-resident violator to respond - • New EU legislation must make this a requirement for all States must be equivalent to that for a resident violator and permissible responses • SOO to ensure that facilities in place to allow non-residents equal and fair access to opportunities to respond

6.1 SOO set penalty 6.1.1 Non-resident violator to be subject to penalties • National legislation for specific • None in accordance imposed by SOO requirements on penalties with national laws 6.1.2 Penalty must be set by SOO according to its national • National legislation for specific • None legislation requirements on penalties

6.2 Corresponding 6.2.1 Penalties set by SOO which must be converted to - • New EU legislation must enable this requirement for all penalty in SOR corresponding penalties in SOR prior to imposition on penalties determined (if violator must be defined • Penalties subject to conversion in each State to be defined necessary) 6.2.2 Rules for converting penalties set by SOO into - • New EU legislation must enable this requirement for all corresponding penalties in SOR must be defined penalties • Rules for conversion in each State to be defined

6.3 Record penalty 6.3.1 Information which comprises a complete description • CoDD Art 8.1 and Art 8.2 for • New EU legislation must enable this requirement for all of a penalty set, imposed and enforced must be driving disqualification penalties defined. This must include on the violator, the nature • Information which comprises a complete description of a of the penalty set by the SOO, the nature of the penalty set, imposed and enforced must be defined at EU level penalty imposed, period over which the penalty is valid and any restrictions placed on the violator

6.3.2 SOO must record penalty set in accordance with its • National legislation for specific • None national legislation requirements on penalties

7.1 SOO impose 7.1.1 SOO must take all necessary steps to impose SOIP • National legislation for specific • None SOIP on violator requirements

7.1.2 SOO must inform SOR of all necessary details of • CoDD Art 3.1, Art 7, Art 8.1 and • New EU legislation must enable this requirement for all SOIP imposed on violator resident in SOO Art 8.2 for driving disqualification penalties • COPEN Art 4.1 for financial • Information necessary for SOO to inform SOR to be agreed at penalties an EU level

7.1.3 SOR must record information describing SOIP • COPEN Art 4.2 for financial • New EU legislation must enable this requirement for all (preferably by adding information to the record of penalties penalties driver registration) • SOR record of driving registration must be capable of recording information about SOIP

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Tier 2 Common Requirements* Existing EU legal basis** Strategic actions*** Procedures

7.1.4 SOO must maintain an audit trail of all actions taken • COPEN Art 4.3 for financial • New EU legislation must enable this requirement for all to impose SOIP penalties penalties • Information required to be kept for audit purposes to be defined and agreed at EU level

7.1.5 Where necessary and permissible, in the event that • COPEN Art 6 for financial • New EU legislation must enable this requirement for all SOO cannot impose SOIP on violator, SOO must penalties penalties delegate power to impose SOIP to SOR

7.2 SOO request 7.2.1 All information necessary to allow the SOO to • CoDD Art 8.1 and Art 8.2 for • New EU legislation must enable this requirement for all SOR to impose delegate the power to impose a SRIP on a non- driving disqualification penalties SRIP resident violator to the SOR must be defined • COPEN Art 4.2 for financial • Information necessary to allow the SOO to delegate the power penalties to impose a SRIP on a non-resident violator to the SOR must be defined at an EU level

7.2.2 Conditions under which a SOO can delegate power • COPEN Art 1 for financial • New EU legislation must enable this requirement for all to impose a SRIP on a non-resident violator to the penalties penalties SOR must be defined • Conditions under which a SOO can delegate power to impose a SRIP on a non-resident violator to the SOR must be defined at an EU level

7.2.3 Conditions under which SOR can refuse to carry out • CoDD Art 6 for driving • New EU legislation must enable this requirement for all SOO request must be defined disqualification penalties • COPEN Art 7 for financial • Conditions under which SOR can refuse to carry out SOO penalties request must be defined at an EU level

7.2.4 SOO must request SOR to impose SRIP • COPEN Art 6 for financial • New EU legislation must enable this requirement for all penalties penalties • Format and content of formal request must be defined and agreed for all penalties

7.3 SOR take actions 7.3.1 SOR must impose the SRIP set by the SOO unless • CoDD Art 4 for driving • New EU legislation must enable this requirement for all necessary to any of the specific conditions for refusal apply disqualification penalties impose SRIP • COPEN Art 6 for financial • States must recognise penalties set and imposed by SOO penalties • Format and content of formal refusal to impose/enforce must be defined and agreed for all penalties

7.3.2 Where necessary, penalties set by SOO must be • CoDD Art 4.1c for driving • New EU legislation must enable this requirement for all converted into corresponding penalties in SOR using disqualification penalties rules defined in 6.2.2 • COPEN Art 10 for financial • States to implement rules for conversion of penalties penalties

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Tier 2 Common Requirements* Existing EU legal basis** Strategic actions*** Procedures

7.3.3 SOR must record information describing SRIP - • New EU legislation must enable this requirement for all (preferably by adding information to the record of penalties driver registration) • SOR record of driving registration must be capable of recording information about SRIP

7.3.4 SOR must maintain an audit trail of all actions taken - • New EU legislation must enable this requirement for all to impose SRIP penalties • Information required to be kept for audit purposes to be defined and agreed at EU level

7.3.5 SOR must inform the SOO that the SRIP has been • CoDD Art 10 for driving • New EU legislation must enable this requirement for all imposed as requested or that conditions for refusal disqualification penalties apply • COPEN Art 14 for financial • Format and content of information required to confirm (or penalties otherwise) to be agreed at an EU level

8.1 States take 8.1.1 SOR must make information specified in 6.3.1 • 3DLD Article 8.5(d) for driving • New EU legislation must enable this requirement for all actions accessible to all relevant authorities in EU via a disqualifications penalties necessary to variety of electronic and manual means • States’ national systems to facilitate requests and responses enforce penalty (either automatically or manually)

8.1.2 SOO must consult record of information specified in - • New EU legislation must enable this requirement for all 6.3.1 when processing all records of violations by penalties resident- and non-resident violators • Format and content of requests and responses for vehicle/driver information to be agreed at an EU level

9.1 Close 9.1.1 The enforcement process must be closed once • National legislation • None enforcement period over which penalty is valid ends process 9.1.2 SOO and SOR must amend all records of the • National legislation (for SOO) • New EU legislation must require SOR to implement this enforcement process to record the closure of the requirement for all penalties enforcement process

Notes: * The requirements specified in this Annex do not pre-suppose any specific architecture for information exchange and consultation. It should therefore be noted that the specifics of the requirements (and in particular, requirements related to information exchange) may change once an information exchange architecture and supporting procedures are defined ** The analysis only considers EC legislation such as COPEN, CoDD and 3DLD. Council of Europe legislation is not deemed appropriate as basis for pan-EU legislation on cross-border enforcement as discussed in Section 9.

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*** Key actions required at a strategic level to implement requirements. New operational procedures will be required to deliver all requirements and are therefore not listed below.

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ANNEX IV EXISTING CROSS-BORDER COOPERATION

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Existing cross-border cooperation

The following table provides an overview of the existing examples of cross-border cooperation for the purposes of enforcing penalties on non-resident violators of road traffic laws.

Cooperating Legal basis for cooperation Nature of Offences covered Penalties covered Status countries cooperation Criminal Civil/ Financial Non- Admin. financial

DK, FI, IC, • Policy: European Convention Multilateral 3 3 Operational NO, SW on Mutual Legal Assistance (20 April 1959) • Implementation and execution: Police Cooperation Agreement (1 January 2003)

NL, LU, BE • Policy: European Convention Multilateral 3 3 Operational on Mutual Legal Assistance (20 April 1959) • Implementation: Schengen Treaty (Art 49) • Execution: Treaty for the extradition and legal assistance for penal cases (27 June 1962)

NL, DE • Policy: European Convention Bilateral 3 3 Operational on Mutual Legal Assistance (20 April 1959) • Implementation: Schengen Treaty (Art 49) • Execution: Agreement of Wittem (30 August 1979)

IE, UK • Policy: European Convention Bilateral 3 3 Expected to on Driving Disqualifications, be 1998 operational • Implementation: Irish Road during 2007 Safety Bill 2002 and UK Crime (International Co- operation) Bill, 2003 • Execution: Forthcoming bi- lateral agreement

AT, BE, FR, • Prüm Convention on the Multilateral 3 3 Signed 27 DE, LU, NL, stepping up of cross-border May 2005 ES cooperation, particularly in Not yet combating terrorism, cross- ratified border crime and illegal migration (27 May 2005)

CH with UK, • Policy: European Convention Treaty allows 3 3 Operational SW, DK, BE, on Mutual Legal Assistance for bilateral ES, HU, CZ (20 April 1959) cooperation

CH with DE • Swiss-German Police Treaty allows 3 3 Operational Cooperation Agreement (27th for bilateral April 1999) cooperation

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Cooperating Legal basis for cooperation Nature of Offences covered Penalties covered Status countries cooperation Criminal Civil/ Financial Non- Admin. financial

CH with NL • Exchange of letters between Treaty allows 3 3 3 Operational Switzerland and the for bilateral Netherlands concerning the cooperation delivery of documents and requests for car owner data based on road traffic offences (4th December 1995 and 12th February 1996)

CH with LU • Exchange of letters Letters allow 3 3 3 3 Operational for bilateral cooperation

CH with AT, • Agreement on Police- and Treaty allows 3 3 Operational LI Customs Cooperation for bilateral between Switzerland, Austria cooperation and Liechtenstein (27th April 1999) • Agreement between Switzerland and Austria Concerning Administrative Cooperation in Road Traffic Matters (23rd May 1979)

CH with FR • Swiss-French Judicary, Treaty allows 3 3 Operational Police and Customs for bilateral Cooperation Agreement (11th cooperation May 1998)

CH with IT • Swiss-Italian Police and Treaty allows 3 3 Operational Customs Cooperation for bilateral Agreement (10th September cooperation 1998)

AT with DE, • Policy: European Convention Multilateral 3 3 Operational IT, LI, FR on Mutual Legal Assistance (20 April 1959)

SI with HR, • Policy: European Convention Multilateral 3 3 Operational AT, IT, MK on Mutual Legal Assistance (20 April 1959)

FR with LU • Implemented through One-way 3 3 Operational national agreement based on local cooperation at border

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ANNEX V ADDRESSING THE CROSS-BORDER ENFORCEMENT OF PENALTIES FOR CIVIL AND ADMINISTRATIVE OFFENCES

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Addressing the cross-border enforcement of penalties for civil and administrative offences

Background

An increasing number of offences that relate to the use of roads in Europe are being created under the civil or administrative law of Member States rather than under criminal law. In some States, a number of road traffic offences have been decriminalised and are now classified as being civil or administrative offences (for example, parking and bus lane offences in the UK). Some States have also used civil or administrative law as a basis for new offences such as charging for the use of an infrastructure (for example road tolling and congestion charging). Penalties for committing these offences are typically financial although non-financial penalties (such as custodial sentences and vehicle confiscation) are also used especially for repeat offenders. With this growing use of civil/administrative law as a basis for some road traffic-related offences, effective ways have to be found to deal with non-residents who violate them.

CAPTIVE’s remit has been to examine ways to effectively impose and enforce penalties on non- resident violators of primarily criminal road traffic offences. It has not addressed civil/administrative offences. However, many of the processes in the enforcement chain are similar for criminal and civil/administrative offences. Consequently, many of the same barriers to cross-border enforcement and their corresponding solutions as discussed in the main body of the report are relevant for civil/administrative offences.

However, more importantly, where there are key differences between the way in which violations of criminal and civil/administrative offences are dealt with, additional barriers to effective cross-border enforcement arise. The majority of these stem from differences in:

• the primary stakeholders which, in an operational context, are typically:

− public-sector agencies

− private-sector organisations working under a concession arrangement for the provision of a specific road transport service or operation of a specific transport facility where the main operational relationship is with one or more public-sector agencies

− private-sector organisations contracted to provide specific services to a public-sector agency or a private-sector organisation where the main operational relationship is with public-sector agencies and other private-sector agencies.

• the legal authority and responsibilities that these stakeholders have - for example, do they have the authority to:

− stop a violator’s vehicle

− identify a violator by accessing information from States’ vehicle and driver registration agencies

− issue notifications to violators.

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Many of these additional barriers are illustrated in the final report from the EFC Expert Group on Enforcement set up in support of the Directive 2004/52/EC of 29 April 2004 on the interoperability of electronic road toll systems. In broad terms, this describes the lack of clarity over the legal basis for the cross-border enforcement of civil/administrative offences relating to road traffic. This lack of clarity needs to be addressed in parallel with removing the common barriers to cross-border enforcement of criminal and civil/administrative offences.

Opportunities to address civil/administrative offences

The following represent opportunities to address the barriers specific to the cross-border enforcement penalties for civil/administrative offences. These are in addition to proposals to address barriers identified in the main body of the report.

Legal basis

At the simplest level, aspects of road use which constitute an offence under civil/administrative law across Europe must be clarified. For example, non-payment of road tolls is a civil/administrative offence in most States which have tolled highway infrastructure. However, this is not the case in all States. Even though France has an extensive tolled motorway network, non-payment of tolls is not an offence under national law.

Accessing data

The fundamental importance of being able to identify the party responsible for a violation (typically the driver but for some offences, this can be the vehicle owner or operator) through vehicle and driver records has been discussed in Section 8.4 of this report. This is one of the points at which current cross-border enforcement efforts (of all types of violations) typically breakdown.

In the case of civil/administrative offences, the involvement of the private sector in violation processing has further complicated this already unsatisfactory situation. In some States, it is difficult (and occasionally impossible) for the private sector to access national vehicle and driver records; where it is possible, there is often a significant cost associated with access.

Before the cross-border enforcement of offences under civil/administrative law can be made effective, this situation needs to be rectified. There are two key issues that need to be addressed:

• Authorised public- and private-sector bodies with valid reason for accessing vehicle and driver information should be able to do so. They need not necessarily be granted direct access to national records; access could be achieved through the SOO request-SOR response mechanism described in the common approach (Section 8.4 and Annex III) or through a trusted third party if necessary

• Access to vehicle and driver information must be available to authorised public- and private- sector bodies across the EU-25 – the right to access cannot be based on nationality. Again, access need not be direct – the SOO request-SOR response mechanism or a trusted third party could be used if necessary.

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Issues relating to charging for access are complex and essentially a matter for national governments. However, the principle of fair and equal treatment is important here - public- and private-sector bodies from different States accessing data using the same mechanism must be charged the same rate.

Setting penalties

There are a number of issues relating to setting of financial penalties including:

• The need for a mechanism to be in place to convert between national currencies as necessary

• The cost of the enforcement process and how this is covered. Mechanisms must be in place to include the proportional cost of the enforcement process in the fine to be paid. It should be noted that for lengthy enforcement processes, administrative costs may well exceed the value of the original financial penalty

• Potential scope for a common scale of financial penalties.

Recognising penalties

As shown in Figure 21, CoDD, 3DLD and COPEN require that SORs recognise penalties set by SOOs unless one or more specified grounds for non-recognition apply. The principle of mutual recognition also needs to apply to penalties set for violations of civil/administrative offences.

Mutual recognition raises a number of issues including those relating to he grounds for non- recognition including:

• How will civil/administrative offences which exist in the SOO but not in the SOR be addressed?

• Similarly, where the SOO sets a penalty that does not exist in the SOR, how will this be addressed?

• Is the SOR able to modify a penalty set by the SOO

• Is the SOO able to impose an alternative penalty?

These are issues which have been resolved for criminal offences through legislation and will similarly need to be resolved for the cross-border enforcement of civil/administrative offences.

Imposing and enforcing penalties

Consensus needs to be built on the mechanism for imposing and enforcing penalties for violating civil/administrative offences and the respective roles of the SOO and SOR. There is a range of possible approaches with, at its extremities:

• A bilateral approach similar to that required by COPEN where the SOO progresses the enforcement process as far as it can before delegating the authority to enforce the penalty to the SOR for execution

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• A fully centralised approach where penalties which cannot be imposed and enforced by the SOO are registered centrally at a European central debt registration agency. This agency would assume responsibility for the debt and take steps to recover monies owed including the use of European Enforcement Orders where necessary/applicable.

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ANNEX VI STAKEHOLDERS IN CROSS-BORDER ENFORCEMENT

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Stakeholders in cross-border enforcement

Figure 30 identifies the stakeholders most typically associated with cross-border enforcement. Although not specific to one particular Member State, the diagram tries to reflect most national organisational structures as far as is possible

Figure 31 shows potential members of the COSTAG in each Member State.

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National parliaments Transport Foreign relations Police Public Customs/border control National Ministries Interior Taxation/revenue EU Parliament Other agencies with enforcement powers Experts Implementation DG TREN Member States Justice Projects Research Health EU Council of Ministers Experts Vehicle Registration authorities Implementation DG INFSO Driving licence registration authorities Projects Research Local and regional governments European Commission Local judiciary Experts Academic and research institutes Research DG Enterprise Projects Semi-independent authorities Implementation

Experts Cross-border enforcement stakeholders Research DG JLS Transport industry Projects Implementation IT industry Media Industry/private sector Financial/banking/insurance industry Motoring/driver associations Private sector debt collection industry Pressure groups Private-sector research agencies/institutes Charities EC trade and industry associations Other Non-EU states Victims associations United Nations Insurance associations External to EU-25 World Health Organisation Road safety-related foundations Accession countries Non-EC funded projects

Figure 30 Cross-border enforcement stakeholders

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EU Parliament National parliaments Transport Foreign relations EU Council of Ministers Police Public Customs/border control National Ministries Interior Experts Taxation/revenue Implementation DG TREN Other agencies with enforcement powers Projects Research Member States Justice Experts Health Implementation DG INFSO Projects Vehicle Registration authorities Research Driving licence registration authorities European Commission Experts Local and regional governments Research DG Enterprise Local judiciary Projects Implementation Academic and research institutes Semi-independent authorities Experts Research DG JLS Projects Cross-border enforcement stakeholders Implementation Transport industry IT industry Media Industry/private sector Financial/banking/insurance industry Motoring/driver associations Private sector debt collection industry Pressure groups Private-sector research agencies/institutes Charities EC trade and industry associations Other Non-EU states Victims associations United Nations Insurance associations External to EU-25 World Health Organisation Road safety-related foundations Accession countries Non-EC funded projects

Figure 31 Potential COSTAG members

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