Every year, dozens of transport companies are fined by the Minister of Infrastructure and Water Management for violating the Working Hours Act due to fraudulent conduct with tachographs and driver cards. These fines are hefty. For the employer as the standard addressee, the fine amounts to €4,400 per violation.
During an initial company inspection, a maximum fine amount of the 5th category of Article 23 paragraph 4 of the Criminal Code can be imposed per fine notice. That is €82,000!
For employers with fewer than 100 employees, the maximum fine amount is reduced in increments to 0.75 for employers with 75-100 employees, to 0.50 for employers with 50-75 employees, to 0.25 for employees with fewer than 25 employees.
Judgment of the Council of State of 12 September 2018
On 12 September 2018, the Council of State made a relevant ruling for legal practice in a case in which it was clear that the data read from the tachographs did not correspond with the hour reports
As usual, the Minister had also stated in this case that the transport company had not supervised the correct functioning and correct use of the control device, the tachograph and the driver card, and concluded that the transport company had acted in breach of its supervisory task arising from the Working Hours Decree Transport. This position and conclusion generally held up, and the fine remained in place.
In this case, the transport company had substantiatedly disputed that there had been a failure to fulfil its supervisory task. The transport company regularly gave instructions to the drivers to make it clear what was expected of them with regard to the use of the tachograph and the driver card.
The Council of State ruled that simply stating this position is not sufficient. The Minister will have to demonstrate that the transport company failed in its supervision and must provide facts to substantiate this.
In this case, the Minister had not substantiated or made clear in what respect the transport company had failed to adequately supervise the correct use of the driver card and the tachograaf. The fine imposed was wrongly imposed.
The near future will show whether the Council of State actually wants to break with the previous line in case law, which argued that the incorrect use of the driver card or tachograph meant that the transport employer had failed in its supervision.
Author: Mr. Otto Lenselink
October 2018
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