In 2019, the Italian Supreme Court – Corte Suprema di Cassazione – referred a so-called preliminary question to the European Court of Justice for an answer.
The facts:
During two roadside checks carried out by the Italian national authorities in 2013, it was found that two truck drivers were unable to produce the tachograph sheets for the tachograph installed in their vehicle for the day itself and for several days in the preceding 28-day period.
The factual judges in Italy:
The competent court at first instance ruled that a separate fine could be imposed for each day that this legal obligation could not be met. The court at second instance held that only one penalty could be imposed per case.
The referring Italian Supreme Court noted that there were thousands of similar cases pending and that, given the divergent national case-law, it sought a ruling of principle from the European Court of Justice.
The preliminary question:
This question was whether Article 19 of EC Regulation No 561/2006 on recording equipment in road transport (i.e. the tachograph) entails that a separate fine may be imposed for each individual day on which the driver is unable to produce the record sheets in the 28 days preceding the check.
The Court of Justice’s answer:
The Court of Justice provided clarity in its judgment of 24 March 2021. The competent authorities of a Member State in which a road transport vehicle is subject to inspections may establish only one infringement and impose only one penalty for this infringement in respect of the driver of that vehicle who fails to produce the recording sheets of the recording equipment for several days worked within the period covering the day of the inspection and the 28 preceding days.
Impact of the judgment of the Court of Justice and the consequences for the road haulier
In any event, the judgment means that in all EU Member States, including the Netherlands, the position can be successfully defended that in the event that tachograph sheets cannot be produced for several days, only one penalty may be imposed.
The question that is relevant for the road haulier is whether the reasoning advocated by the Court of Justice that only one penalty may be imposed for one type of offence that has occurred repeatedly and on several days, also applies to other penalties imposed in relation to the use of the tachograph.
Working Hours Act
After all, hefty fines are imposed for violations that result in a fine for failing to maintain proper administration as referred to in Article 4:3 paragraph 1 of the Working Hours Act, such as not being able to provide tachograph data (M files) for all days. In accordance with the Policy Rule on the Imposition of Fines under the Working Hours Act and the Working Hours Decree for Transport 2016, a fine of €4,400 applies to this violation.
The question is whether the Minister of Infrastructure and Water Management and the executive body, the Human Environment and Transport Inspectorate (ILT), will limit themselves to imposing one fine, mindful of the ruling of the Court of Justice.
In that case, it is first up to the Dutch court to decide whether this is still permitted. With reference to the judgment discussed here, I give the road carrier a good chance of success that only one fine can be imposed.
If your transport company has received a fine or an intention to impose a fine from the Human Environment and Transport Inspectorate – ILT -, I can provide you with advice and help you file an objection or a statement of opinion. Of course, as transport law attorney I am also authorized to represent your transport company if it comes to legal proceedings.
If you would like more information, you can contact me by telephone. I can be reached on 076-5204044. You can reach me by email at info@transportrechtadvocaat.nl.
Mr. Otto Lenselink
May 2021
*Judgment of the Court of Justice of 24 March 2021
Location: https://eur-lex.europa.eu/legal-content/NL/TXT/HTML/?uri=CELEX:62019CJ0870&from=EN
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