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ERRU AND GOOD REPUTE CHALLENGES TOWARDS

COMMUNITY WIDE HARMONISATION OF

GOOD REPUTE REQUIREMENTS

Brussels 17 November 2010

Marcel Waasdorp, LL.M M.Sc legal counsel and

Gérard Schipper ECR General Delegate ECR supported by:

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1. ERRU and good repute Harmonisation and implementation of the good repute requirement

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2. Summary

• Introduction

• Harmonisation of the good repute requirement: challenges

• Positions and questions

• Discussion

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3. Requirement of good repute Good repute road transport undertaking and transport manager

- National conditions: No compelling grounds for doubting the good repute

- Community conditions:No conviction of or penalty for a serious infringement

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4. Consequences loss of good repute?

May result in: - Suspension or withdrawal authorisation

undertaking- Declaration of unfitness of the transport

manager (TM)

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5. What is good repute? Community conditions: 7 serious infringements 1.Exceeding permitted driving time; 2.No tachograph or speed limiter, omission driver card data;3. No roadworthiness; 4. Carriage of dangerous goods; 5. No valid? driving licence or valid? authorisation; 6. Falsified or falsely obtained driving licence; 7. Exceeding maximum weight.

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ANNEX IV.doc

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6. Decision process / assessment good repute - Penalty for or conviction of a serious

infringement by TM or undertaking- Proportionality check loss of good repute- If deemed proportionate; - A) declaration of unfitness TM - B) 6 months term to decide on withdrawal of the

authorisation undertaking- Or, suspension or withdrawal of the authorisation

undertaking due to its conduct

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7. Challenges towards harmonisation and legal certainty 1. Interpretation of serious infringement in practice2. Detection, forwarding and registrations of these infringements3. Attribution of the serious infringements to the undertaking, TM or both?4. Interpretation and application of the proportionality check related to the loss of good repute5. What is rehabilitation?

What contributes to a uniform application of the requisite of good repute?

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8. Positions and questions Sub 1: Interpretation of serious infringements in practice  

Example: Driving licence expired two days? What if the most serious infringement is addressed to the driver only? Undertaking?

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9. Positions and questions Sub 2: Detection, forwarding and proper registration of the MSI’s within the ERRU database

 

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Example: Are all control officers capable and aware of the fact that they detected a MSI and how they should act in line with ERRU?

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10. Positions and questions Sub 3: The attribution of serious infringements to the undertaking, TM or both?

Example:aTo which actor or party is a specific MSI’s directed to according to national law? If the MSI is directed solely to the undertaking is it then legally possible to declare the TM?

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11. Positions and questions Sub 4: Interpretation and application of the proportionality check related to the loss of good repute

ExampleHow many sanctions or convictions of serious infringements are needed in order to decide the loss of good repute of an undertaking or TM? What are the other relevant criteria and considerations when deciding upon the final loss of good repute? For example; involvement of management, intent, (gross) negligence, recidivism and additional circumstances. size company, other relevant criteria? 

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12. Positions and questions 5. What does rehabilitation entail? Example:• The TM has passed an integrity exam with good

results• Rehabilitation resulting from a civil court case,

ruling that the initial unfitness was unlawful • The reconstitution of the transport undertaking's

management

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 Will a common approach and strategy towards enforcement and implementation of legislation that regulates the requirements of good repute (the 7 MSI’s) lead to the following benefits: Fair competition?Public and road safety?Transparent government?Legal certainty?

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12. Discussion12. Discussion

12. Discussion12. Discussion 12. Discussion

13. Discussion

12. Discussion

12. Discussion

12. Discussion

ssion

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Thanks for your attention!

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Questions ?