Directive 2011/82/EU of the European Parliament and of the Council
of 25 October 2011
facilitating the cross-border exchange of information on road safety related traffic offences
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 87(2) thereof,
Having regard to the proposal from the European Commission,
Acting in accordance with the ordinary legislative procedure ,
Whereas:
(1)
Improving road safety is a prime objective of the Union's transport policy. The Union is pursuing a policy to improve road safety with the objective of reducing fatalities, injuries and material damage. An important element of that policy is the consistent enforcement of sanctions for road traffic offences committed in the Union which considerably jeopardise road safety.
(2)
However, due to a lack of appropriate procedures and notwithstanding existing possibilities under Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime and Council Decision 2008/616/JHA of 23 June 2008 on the implementation of Decision 2008/615/JHA (the 'Prüm Decisions'), sanctions in the form of financial penalties for certain road traffic offences are often not enforced if those offences are committed with a vehicle which is registered in a Member State other than the Member State where the offence took place. This Directive aims to ensure that even in such cases, the effectiveness of the investigation of road safety related traffic offences should be ensured.
(3)
The Commission, in its Communication of 20 July 2010 entitled 'Towards a European road safety area: policy orientations on road safety 2011-2020', emphasised that enforcement remains a key factor in creating the conditions for a considerable reduction in the number of deaths and injuries. The Council, in its conclusions of 2 December 2010 on road safety, called also for consideration of the need for further strengthening of enforcement of road traffic rules by Member States and, where appropriate, at Union level. It invited the Commission to examine the possibilities of harmonising traffic rules at Union level where appropriate. The Commission should therefore assess the need to propose in the future further measures on facilitating cross-border enforcement with regard to road traffic offences, in particular those related to serious traffic accidents.
(4)
Greater convergence of control measures between Member States should also be encouraged and the Commission should examine in this respect the need for developing common standards for automatic checking equipment for road safety controls.
(5)
The awareness of Union citizens should be raised as regards the road safety traffic rules in force in different Member States and as regards the implementation of this Directive, in particular through appropriate measures guaranteeing the provision of sufficient information on the consequences of not respecting the road safety traffic rules when travelling in a Member State other than the Member State of registration.
(6)
In order to improve road safety throughout the Union and to ensure equal treatment of drivers, namely resident and non-resident offenders, enforcement should be facilitated irrespective of the Member State of registration of the vehicle. To this end, a system of cross-border exchange of information should be put in place for certain identified road safety related traffic offences, regardless of their administrative or criminal nature under the law of the Member State concerned, granting the Member State of the offence access to vehicle registration data (VRD) of the Member State of registration.
(7)
A more efficient cross-border exchange of VRD, which should facilitate the identification of persons suspected of committing a road safety related traffic offence, may increase the deterrent effect and induce more cautious behaviour by the driver of a vehicle that is registered in a Member State other than the Member State of the offence, thereby preventing casualties due to road traffic accidents.
(8)
The road safety related traffic offences covered by this Directive are not subject to homogeneous treatment in the Member States. Some Member States qualify such offences under national law as 'administrative' offences while others qualify them as 'criminal' offences. This Directive should apply regardless of how those offences are qualified under national law.
(9)
In the framework of the Prüm Decisions, Member States grant each other the right of access to their VRD in order to improve the exchange of information and to speed up the procedures in force. The provisions concerning the technical specifications and the availability of automated data exchange set out in the Prüm Decisions should, as far as possible, be included in this Directive.
(10)
Existing software applications should be the basis for the data exchange under this Directive and should, at the same time, also facilitate the reporting by Member States to the Commission. Such applications should provide for the expeditious, secure and confidential exchange of specific VRD between Member States. Advantage should be taken of the European Vehicle and Driving Licence Information System (Eucaris) software application, which is mandatory for Member States under the Prüm Decisions as regards VRD. The Commission should report on an assessment of the functioning of the software applications used for the purposes of this Directive.
(11)
The scope of the above-mentioned software applications should be limited to the processes used in the exchange of information between the national contact points in the Member States. Procedures and automated processes in which the information is to be used are outside the scope of such applications.
(12)
The Information Management Strategy for EU internal security aims at finding the simplest and most easily traceable and cost-effective solutions for data exchange.
(13)
Member States should be able to contact the owner, the holder of the vehicle or the otherwise identified person suspected of committing the road safety related traffic offence in order to keep the person concerned informed of the applicable procedures and the legal consequences under the law of the Member State of the offence. In doing so, Member States should consider sending the information concerning road safety related traffic offences in the language of the registration documents or the language most likely to be understood by the person concerned, to ensure that that person has a clear understanding of the information which is being shared with the person concerned. Member States should apply the appropriate procedures to ensure that only the person concerned is informed and not a third party. To that effect, Member States should use detailed arrangements similar to those adopted for following up such offences including means such as, where appropriate, registered delivery. This will allow that person to respond to the information in an appropriate way, in particular by asking for more information, settling the fine or by exercising his/her rights of defence, in particular in the case of mistaken identity. Further proceedings are covered by applicable legal instruments, including instruments on mutual assistance and on mutual recognition, for example Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties .
(14)
Member States should consider providing equivalent translation with respect to the information letter sent by the Member State of the offence, as provided for in Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings .
(15)
With a view to pursuing a road safety policy aiming for a high level of protection for all road users in the Union and taking into account the widely differing circumstances pertaining within the Union, Member States should act, without prejudice to more restrictive policies and laws, in order to ensure greater convergence of road traffic rules and of their enforcement between Member States. In the framework of its report to the European Parliament and to the Council on the application of this Directive, the Commission should examine the need to develop common standards in order to establish comparable methods, practices and minimum standards at Union level taking into account international cooperation and existing agreements in the field of road safety, in particular the Vienna Convention on Road Traffic of 8 November 1968.
(16)
In the framework of its report to the European Parliament and to the Council on the application of this Directive by the Member States, the Commission should examine the need for common criteria for follow-up procedures by the Member States in the event of non-payment of a financial penalty, in accordance with Member States' laws and procedures. In this report, the Commission should address issues such as the procedures between the competent authorities of the Member States for the transmission of the final decision to impose a sanction and/or financial penalty as well as the recognition and enforcement of the final decision.
(17)
In preparing the review of this Directive, the Commission should consult the relevant stakeholders, such as road safety and law enforcement authorities or bodies, victims' associations and other non-governmental organisations active in the field of road safety.
(18)
Closer cooperation between law enforcement authorities should go hand in hand with respect for fundamental rights, in particular the right to respect for privacy and to protection of personal data, guaranteed by special data protection arrangements which should take particular account of the specific nature of cross-border online access to databases. It is necessary that the software applications to be set up enable the exchange of information to be carried out in secure conditions and ensure the confidentiality of the data transmitted. The data gathered under this Directive should not be used for purposes other than those of this Directive. Member States should comply with the obligations on the conditions of use and of temporary storage of the data.
(19)
Since the data relating to the identification of an offender are personal data, Member States should take the measures necessary to ensure that the relevant provisions of Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters are applied. Without prejudice to the observance of the procedural requirements for appeal and the redress mechanisms of the Member State concerned, the data subject should be informed accordingly, when notified of the offence, of the right to access, the right to rectification and deletion of personal data as well as of the maximum legal storage period of the data and should have the right to obtain the correction of any inaccurate personal data or the immediate deletion of any data recorded unlawfully.
(20)
It should be possible for third countries to participate in the exchange of VRD provided that they have concluded an agreement with the Union to this effect. Such an agreement would have to include necessary provisions on data protection.
(21)
This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, as referred to in Article 6 of the Treaty on European Union.
(22)
In accordance with Articles 1 and 2 of the Protocol (No 21) on the Position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Directive and are not bound by it or subject to its application.
(23)
In accordance with Articles 1 and 2 of the Protocol (No 22) on the position of Denmark, annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application.
(24)
In order to achieve the objective of exchange of information between Member States through interoperable means, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of taking into account relevant changes to Decision 2008/615/JHA and Decision 2008/616/JHA or where required by legal acts of the Union directly relevant for the update of Annex I. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and Council.
(25)
In accordance with point 34 of the Interinstitutional Agreement on better law-making , Member States are encouraged to draw up, for themselves and in the interest of the Union, their own tables, which will, as far as possible, illustrate the correlation between this Directive and the transposition measures, and to make them public.
(26)
Since the objective of this Directive, namely to ensure a high level of protection for all road users in the Union by facilitating the cross-border exchange of information on road safety related traffic offences, where they are committed with a vehicle registered in a Member State other than the Member State where the offence took place, cannot be sufficiently achieved by the Member States and can therefore by reason of the scale and effects of the action be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.
(27)
The European Data Protection Supervisor was consulted and adopted an opinion ,
HAVE ADOPTED THIS DIRECTIVE:
Position of the European Parliament of 17 December 2008 (OJ C 45 E, 23.2.2010, p. 149) and position of the Council at first reading of 17 March 2011 (OJ C 136 E, 6.5.2011, p. 1). Position of the European Parliament of 6 July 2011 (not yet published in the Official Journal) and decision of the Council of 29 September 2011.
OJ L 210, 6.8.2008, p. 1.
OJ L 210, 6.8.2008, p. 12.
OJ L 76, 22.3.2005, p. 16.
OJ L 280, 26.10.2010, p. 1.
OJ L 350, 30.12.2008, p. 60.
OJ C 321, 31.12.2003, p. 1.
OJ C 310, 5.12.2008, p. 9.