Considerations on COM(2023)126 - Amendment of Directive (EU) 2015/413 facilitating cross-border exchange of information on road-safety-related traffic offences

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dossier COM(2023)126 - Amendment of Directive (EU) 2015/413 facilitating cross-border exchange of information on road-safety-related traffic ...
document COM(2023)126 EN
date December 19, 2024
 
table>(1)Directive (EU) 2015/413 of the European Parliament and of the Council (3) facilitates the cross-border exchange of information on road-safety-related traffic offences and thereby lowers the impunity of non-resident offenders. An effective cross-border investigation of road-safety-related traffic offences and enforcement of sanctions improves road safety as it encourages non-resident drivers to commit fewer offences and drive more safely.
(2)The knowledge of Union citizens as regards the road-safety traffic rules in force, the applicable sanctions in the various Member States and the high probability of an unavoidable sanction promotes road safety and reduces the number of road-safety-related traffic offences and road traffic hazards.

(3)The experience of enforcement authorities involved in the investigation of road-safety-related traffic offences has shown that the current wording of Directive (EU) 2015/413 fails in the facilitation of an effective investigation of the road-safety-related traffic offences committed by non-resident drivers and in the enforcement of financial penalties to the desired degree. That results in a relative impunity of non-resident drivers and has a negative impact on road safety in the Union. Furthermore, fundamental and procedural rights of non-resident drivers are not always respected in the context of cross-border investigations, in particular due to a lack of transparency in the setting of the amount of the financial penalties and in the appeal procedures. Therefore, this Directive aims to improve the effectiveness of the investigation of road-safety-related traffic offences committed with vehicles registered in a Member State other than the Member State where the offence was committed (‘Member State of the offence’). This would help reach the Union’s goal of reducing the death toll across all modes of transport by bringing it close to zero by 2050 and strengthen the protection of fundamental and procedural rights of non-resident drivers.

(4)In its EU Road Safety Policy Framework 2021-2030 – Next steps towards ‘Vision Zero’ of 19 June 2019, the Commission reiterated its commitment to the ambitious goal to get close to zero deaths and zero serious injuries on Union roads by 2050 (‘Vision Zero’), and to the medium-term goal to reduce deaths and serious injuries by 50 % by 2030, a target originally set in the Valletta Declaration on Road Safety adopted by the Ministers of Transport of the Member States of the Union on 29 March 2017. In order to achieve those goals, the Commission, in its communication of 9 December 2020 entitled ‘Sustainable and Smart Mobility Strategy – putting European transport on track for the future’, announced its intent to revise Directive (EU) 2015/413.

(5)The scope of Directive (EU) 2015/413 should be extended to other road-safety-related traffic offences to ensure the equal treatment of drivers. Considering the legal basis on which Directive (EU) 2015/413 was adopted, namely Article 91(1), point (c), of the Treaty on the Functioning of the European Union (TFEU), the offences to be added to that Directive should demonstrate a direct link to road safety by addressing dangerous and reckless behaviour, which poses a serious risk to road users. The extension of the scope of Directive (EU) 2015/413 should also reflect the technical progress in the automatic detection of road-safety-related traffic offences.

(6)Road-safety-related traffic offences are classified either as administrative or criminal offences under national law. Therefore, depending on the applicable national procedures, such offences might give rise to proceedings brought by administrative or judicial authorities before courts having jurisdiction in administrative or criminal matters. In most cases, such road-safety related traffic offences are pursued by Member States in the course of mass processing, which, in cases where the precise identification of the driver is required by the law of the Member State of the offence as a precondition for imposing the relevant sanction, prevents effective application and/or the issuance of a European Investigation Order. The conditions to issue a European Investigation Order set out in Article 6 of Directive 2014/41/EU of the European Parliament and of the Council (4) are in most cases not met, and thus that Directive cannot be applied, in particular where the offences are qualified as administrative. In that context, national authorities of the Member State of the offence, in order to be able to identify offenders with the degree of certainty required by their national law, should have an effective procedure at their disposal to request mutual assistance from the relevant national authorities of the Member State where the vehicle with which the offence was committed is registered (‘Member State of registration’) or Member State of residence of the person concerned. That procedure should be based on well-defined measures, which do not seriously affect the rights of the persons concerned. However, this should be without prejudice to situations where in individual cases the conditions for applying Directive 2014/41/EU are deemed to have been fulfilled, in which case the procedures laid down in that Directive should be applied by those Member States that are bound by that Directive. It should be recalled that a specific Union legal framework regulates judicial cooperation in criminal matters, which is based on the principle of mutual recognition of judgments and judicial decisions. It is therefore necessary that the application of Directive (EU) 2015/413 as amended by this Directive does not undermine the rights and obligations of the Member States stemming from other applicable Union law in criminal matters, and in particular those laid down in Council Framework Decision 2005/214/JHA (5) as regards mutual recognition of financial penalties and Directive 2014/41/EU as concerns the procedures for gathering of evidence, and Article 5 of the Convention established by the Council in accordance with Article 34 of the Treaty on European Union, on Mutual Assistance in Criminal Matters between the Member States of the European Union (6) as regards the procedures for sending and service of procedural documents. Furthermore, criminal proceedings demanding specific guarantees for the individuals concerned, the procedural safeguards for suspects and accused persons, enshrined in Directives 2010/64/EU (7), 2012/13/EU (8), 2013/48/EU (9), (EU) 2016/343 (10), (EU) 2016/800 (11) and (EU) 2016/1919 (12) of the European Parliament and of the Council, should also not be affected by the implementation of Directive (EU) 2015/413.

(7)The responsibilities and competences of national contact points should be defined to ensure that they seamlessly cooperate with all competent authorities involved in the investigation of the road-safety-related traffic offences which fall within the scope of Directive (EU) 2015/413 as amended by this Directive. National contact points should always be available for such competent authorities and answer their requests without undue delay. This should be the case regardless of the nature of the offence or the legal status of the competent authority, and in particular regardless of whether the competent authority has national or subnational or local competence.

(8)The basics of the system of cross-border exchange of information established by Directive (EU) 2015/413 have proved to be effective. However, further improvements and adjustments are necessary to remedy issues resulting from lacking, erroneous or inaccurate data. Therefore, further obligations should be imposed on Member States regarding the need to keep certain data in the relevant databases available and up to date to increase the effectiveness of the information exchange.

(9)A number of Member States are now facing a phenomenon where serious road-safety-related traffic offences are being committed in cars rented in other Member States. The drivers of such rental cars who commit a road-safety-related traffic offence are going unpunished because they can exploit differences in rules between Member States, as well as shortcomings as regards the exchange of information and mutual assistance.

(10)The national contact point of the Member State of the offence should be allowed to conduct automated searches in vehicle registers to retrieve data on end users of vehicles where such information is already available. Furthermore, a data retention period should be established as regards the identity of the previous holders, owners and end users of the vehicles to provide authorities with the appropriate information they need for the investigation.

(11)The person concerned might not be familiar with the legal system of the Member State of the offence nor speak its official language or languages, and therefore the fundamental and procedural rights of persons concerned should be better safeguarded. In order to achieve that objective, mandatory minimum requirements for the content of the traffic offence notice should be established and the current template for the information letter that only contains basic information, as set out Annex II to Directive (EU) 2015/413, should no longer be used.

(12)As a minimum, the traffic offence notice should use wording that is understandable to those without legal training and include detailed information on the legal classification and legal consequences of the road-safety-related traffic offence, in particular taking into account that the sanctions for the offences covered by the scope of Directive (EU) 2015/413 as amended by this Directive can be of a non-pecuniary nature, such as restrictions placed on the offender’s right to drive. The rights of defence should also be supported by providing detailed information on where, when and how to exercise those rights in the Member State of the offence. In that regard, non-residents should be given sufficient time to seek a remedy, for example appeal. A description of in absentia procedures should also be provided where applicable, as the person concerned may not plan to return to the Member State of the offence to participate in the proceedings. Payment options and ways to mitigate the volume of the sanctions should also be made easily understandable in order to incentivise voluntary cooperation. Finally, as the traffic offence notice should be the first document the person concerned receives, it should contain the information specified in Article 13 of Directive (EU) 2016/680 of the European Parliament and of the Council (13), which, pursuant to Article 13(2), point (d), of that Directive should include information on the source from which the personal data originate, and information specified in Articles 13 and 14 of Regulation (EU) 2016/679 of the European Parliament and of the Council (14). This information should be provided in the traffic offence notice either directly or by way of reference to the place where it is made available. Member States need to help road users in verifying the authenticity of the traffic offence notices and follow-up documents. For this purpose, Member States need to share with each other and with the Commission through secure means the templates of traffic offence notices and templates of follow-up documents issued by their competent authorities, which are used in cross-border cases. Member States need also to inform each other on the competent authorities that have the right to issue those traffic offence notices and follow-up documents.

(13)Where a non-resident driver is checked on the spot in a roadside check, and such action leads to the initiation of follow-up proceedings in relation to a road-safety-related traffic offence, a traffic offence notice should be sent to the non-resident driver. In the cases of on-the-spot checks in relation to a road-safety-related traffic offence committed by the non-resident driver and where the competent authority has enforced the sanction related to the committed offence by making the non-resident driver pay the fine on the spot, the non-resident driver should only be provided with certain essential elements of a traffic offence notice on the spot.

(14)In order to ensure that the person concerned is the one that actually receives the traffic offence notice and any follow-up documents, and to avoid the erroneous involvement of non-concerned third parties, this Directive should lay down rules on service of the traffic offence notice and follow-up documents.

(15)Both the traffic offence notice and any essential follow-up documents should be sent in the language of the registration document of the vehicle. In those cases where a traffic offence notice and follow-up documents are being sent out in a language the person concerned does not understand, that person concerned should be allowed to request to receive the follow-up documents in one additional official language of the institutions of the Union of choice other than the language of the registration document of the vehicle. The competent authority of the Member State of the offence should grant this request.

(16)Effective legal review should be provided in cases where the competent authorities of the Member State of the offence do not comply with the language standards and rules on the service of documents laid down in this Directive and their respective national laws.

(17)In cases where the person concerned cannot be identified with the degree of certainty required by the law of the Member State of the offence based on the information acquired from the vehicle register, Member States should cooperate in order to ascertain the identity of the person concerned. To that end, a mutual assistance procedure should be introduced aimed at identifying the person concerned, either through a request for confirmation, on the basis of information already held by the competent authority of the Member State of the offence, or through a request for a targeted enquiry to be conducted by the relevant competent authorities of the Member State of registration or Member State of residence.

(18)The competent authorities of the Member States should use a standard electronic form for the request and response for mutual assistance, in order to provide the additional information requested by the competent authority of the Member State of the offence necessary for the identification of the person concerned. Member States should use their national contact points in order to allow for a highly secure and efficient transfer of both the outgoing requests for mutual assistance and the incoming responses to them. The requested information should be gathered without any undue delay and in any case within the time limits referred to in this Directive. When gathering the information and responding to the request for assistance, the Member State of registration or Member state of residence that has received the request shall take into account both the need for the person concerned to be notified in due time and the need of the Member State of the offence that has made the request to be able to take the necessary steps in due time, in particular taking into account the statutes of limitation set out in the national law of the Member State of the offence.

(19)The competent authority of the Member State of registration or Member State of residence should specifically identify the grounds on the basis of which it can refuse the provision of mutual assistance for the identification of the person concerned. In particular, safeguards should be introduced to avoid revealing the identity of protected persons, such as protected witnesses, when providing mutual assistance.

(20)Member States should be allowed to use the same national procedures that they would have used if the road-safety-related traffic offence were committed by one of their residents in order to identify the person concerned who is not their resident. Legal certainty should be reinforced as regards the applicability of specific measures taken under such procedures, namely concerning documents requiring the confirmation or denial of the commission of the offence or imposing obligations on persons concerned to cooperate in identifying the liable person. As those measures should have the same legal effects on the persons concerned as in domestic cases, those persons should also enjoy the same standards of fundamental and procedural rights.

(21)Where Union or national law explicitly provides access to or the possibility to exchange information from other national or Union databases for the purposes of Directive (EU) 2015/413, Member States should have the possibility to exchange information by using such databases, while respecting the fundamental rights of non-resident persons concerned.

(22)In the case where it is not possible to deliver documents by post, registered delivery, registered mail or electronic means of equal value, the competent authority of the Member State of the offence should be allowed to rely on the competent authority of the Member State of registration or Member State of residence to service the documents and communications to the person concerned under their own national law governing the service of documents. Member States should use their national contact points in order to allow for a secure and efficient transfer of both the outgoing request to deliver procedural documents and the incoming response to it.

(23)It is necessary to highlight that there is a significant problem of non-enforcement related to road-safety-related traffic offences committed by non-residents and that amendments to Article 1 of Council Framework Decision 2005/214/JHA which lays down the definition of a decision, might not be sufficient to tackle this problem effectively.

(24)As Framework Decision 2005/214/JHA is not tailored to mass processing of road-safety-related traffic offences, for which small pecuniary sanctions are often qualified as administrative, and in order to ensure equal treatment of resident and non-resident drivers, specific provisions should be established in this Directive to provide Member States with the possibility to enforce administrative decisions on road traffic fines across borders and to provide mutual assistance for that enforcement. This does not preclude the application of the Framework Decision 2005/214/JHA.

(25)The Commission, in cooperation with Member States, is to carry out a review of solutions for cross-border electronic access to registers of road-safety-related traffic offences managed by national authorities with a view to assessing ways to improve the access of citizens to the traffic offence notices and the follow-up documents that are addressed to them.

(26)The request to disclose vehicle registration data and the exchange of the data elements in cross-border cases should be carried out through a single electronic system. Therefore, building on the already existing technical framework, the automated searching of vehicle registration data under Directive (EU) 2015/413 should only be carried out through the use of the highly secured European Vehicle and Driving Licence Information System (EUCARIS) software application and amended versions of that software application. That software application should allow for the expeditious, cost-efficient, secure and reliable exchange of specific vehicle registration data between Member States, and therefore increase the efficiency of the investigation of the road-safety-related traffic offences. Member States should not exchange information by other means, which would be less cost-efficient and may not ensure the protection of the transmitted data. In the process of exchanging vehicle registration data, competent authorities might encounter abnormal requests that might lead to a suspicion of misuse of the information exchange process and require appropriate measures to be taken by competent authorities. Such abnormal requests might in particular be requests that are unusual in their frequency or content, that are sudden or that concern only specific offences. Member States should use EUCARIS specifically for automated searches of vehicle registration data and mutual assistance in identifying the person concerned, mutual assistance in the service of the traffic offence notice and follow-up documents and mutual assistance in enforcement activities.

(27)In order to prevent the abusive practices which emerged during the implementation of Directive (EU) 2015/413 and to safeguard the fundamental rights of the citizens concerned by the cross-border proceedings established by that Directive as amended by this Directive, the Member States should ensure that their competent authorities and national contact points in charge of the implementation of Directive (EU) 2015/413 as amended by this Directive fully comply with the obligations assigned to them without empowering the privately owned or managed legal entities with the activities related to the implementation of this Directive. In particular, the right to the protection of the personal data of the persons concerned, the right to good administration, the right to an effective remedy and a fair trial, the right to presumption of innocence and the rights of defence, as well as the proper functioning of the cross-border information exchange mechanism established by Directive (EU) 2015/413 require that only the designated national competent authorities and national contact points are able to initiate, conduct and enforce procedures related to road-safety-related traffic offences. This is without prejudice to the possibility of competent authorities to rely on the technical support services provided by privately owned or managed legal entities, such as postal services, building or maintenance of the radars and the analysis of drug or alcohol use by the private laboratories. A transitional period of two years would allow the Member States, which had recourse to the privately owned or managed legal entities in the implementation of this Directive, to ensure that their competent authorities are fully operational and able to manage the procedures relating to the cross-border exchange in full respect with the rules set out in Directive (EU) 2015/413 as amended by this Directive.

(28)The scope of the information that Member States report to the Commission should be extended to include elements closely related to the objective of improving road safety and to include information on the number of road-safety-related traffic offences committed by drivers of vehicles registered in a third country and detected by a competent authority of a Member State. The aim of this extension is to enable the Commission to analyse the state of play in the Member States and to propose initiatives on a sound factual basis. To offset the additional administrative burden on Member States’ authorities and to align reporting with the Commission’s evaluation calendar, the reporting period should be extended. A transitional period should be granted so that the ongoing two-year reporting period can end seamlessly.

(29)To attain the objectives put forward in the EU Road Safety Policy Framework 2021-2030 – Next steps towards ‘Vision Zero’, the question of how to address road-safety-related traffic offences committed by drivers of vehicles registered in a third country could be considered. To that end, different means for enhancing the cooperation and exchange of information on road-safety-related traffic offences between the Member States and third countries need to be explored, provided that equivalent protection is afforded to the persons concerned and that the rules on the transfer of personal data to third countries are respected. Dedicated digital solutions also need to be explored. This would be without prejudice to the right of Member States to conclude bilateral or multilateral agreements with third countries on cooperation in the enforcement of road-safety-related traffic offences.

(30)This Directive should not preclude Member States from concluding and applying bilateral or multilateral agreements between them, in so far as such agreements would exceed and help to simplify or facilitate the procedures set out in this Directive.

(31)As data relating to the identification of the person concerned constitute personal data within the meaning of Regulation (EU) 2016/679 and Directive (EU) 2016/680, and as the Union legal framework on handling personal data has been amended significantly since the adoption of Directive (EU) 2015/413, the provisions on the processing of personal data should be aligned with the new legal framework.

(32)Pursuant to Article 62(6) of Directive (EU) 2016/680, the Commission reviewed other legal acts adopted by the Union which regulate the processing of personal data by the competent authorities for the purposes set out in Article 1(1) of that Directive, in order to assess the need to align those acts with that Directive and to make, where appropriate, the necessary proposals to amend those acts to ensure a consistent approach with regard to the protection of personal data within the scope of that Directive. That review presented in the Commission communication of 24 June 2020 entitled ‘Way forward on aligning the former third pillar acquis with data protection rules’ has led to the identification of Directive (EU) 2015/413 as one of those other acts that had to be amended. It should therefore be clarified in this Directive that the processing of personal data should also comply with Directive (EU) 2016/680, where the processing falls within its material and personal scope.

(33)Any processing of personal data under Directive (EU) 2015/413 should comply with Regulation (EU) 2016/679, Directive (EU) 2016/680 and Regulation (EU) 2018/1725 of the European Parliament and of the Council (15) where the processing falls within their respective material and personal scope.

(34)The legal basis for the processing of the activities necessary to establish the identity of the person concerned and deliver the traffic offence notice and the follow-up documents to the person concerned, is laid down in Directive (EU) 2015/413, in line with Article 6(1), first subparagraph, point (e), and, where applicable, with Article 10 of Regulation (EU) 2016/679 and Article 8 of Directive (EU) 2016/680. In line with the same rules, this Directive lays down the legal basis for the Member States’ obligation to process personal data for the purpose of providing mutual assistance to each other in identifying the persons concerned.

(35)In some Member States, the personal data of non-resident persons concerned are stored in a network of servers (‘cloud’). Without prejudice to the rules on personal data breach laid down in Regulation (EU) 2016/679 and Directive (EU) 2016/680, and on personal data breach and security incidents laid down in Directive (EU) 2022/2555 of the European Parliament and of the Council (16), Member States should ensure that they inform each other on cybersecurity incidents related to those data.

(36)The Commission should provide proportionate financial support to initiatives which improve the cross-border cooperation in the enforcement of road-safety-related traffic rules in the Union. Such support can also be provided for information campaigns throughout the Union on differences in national law, with a particular focus on neighbouring countries.

(37)An online portal (‘CBE Portal’) should be established to provide road users in the Union with comprehensive information on the road-safety-related traffic rules in force in the Member States. Such information needs to be understandable and accessible. This information should cover information on legal remedies, on any rights afforded to the persons concerned under Directive (EU) 2015/413 as amended by this Directive, including language options, information on the data protection rules and on the applicable sanctions, including where relevant the applicable non-financial repercussions, and the schemes and available means for the payment of fines imposed in respect of road-safety-related traffic offences. Non-financial repercussions refer to penalty points systems or the fact that when committing a specific road-safety-related traffic offence, this can lead to a driving disqualification by means of a temporary or permanent withdrawal of the driving licence of the person concerned.

(38)Member States should endeavour to ensure that the revenues generated from financial penalties for road-safety-related traffic offences, enforced under Directive (EU) 2015/413 as amended by this Directive, are used to increase road safety and to ensure transparency on road-safety measures.

(39)In order to take into account relevant technical progress or changes to relevant legal acts of the Union, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in order to update the Annex to this Directive by amending it. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (17). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

(40)In order to ensure uniform conditions for the implementation of Directive (EU) 2015/413, implementing powers should be conferred on the Commission to establish the procedures, content and technical specifications, including cybersecurity measures, for the automated searches to be conducted in relation to the investigation of the road-safety-related traffic offences, the content of the standard electronic form for the request and the means of transmission of the information relating to the request for mutual assistance in identifying the person concerned, the content of electronic forms for the request for mutual assistance for the service of the traffic offence notice and of the follow-up documents and the use and maintenance of the CBE Portal. The technical solutions should be aligned with the European Interoperability Framework and the relevant Interoperable Europe solutions referred to in Regulation (EU) 2024/903 of the European Parliament and of the Council (18).The implementing powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (19). However, until the implementing acts adopted by the Commission become applicable, transitional measures for the automated exchange of vehicle registration data based on the existing electronic system should be in place to guarantee seamless data exchanges.

(41)Member States need to ensure that adequate and effective mechanisms are in place for the enforcement or recovery of financial penalties.

(42)Since the objectives of this Directive, namely to ensure a high level of protection for all road users in the Union and equal treatment of persons concerned by streamlining mutual assistance procedures between Member States in the cross-border investigation of road-safety-related traffic offences and by strengthening the protection of fundamental rights of non-resident persons concerned where those offences are committed with a vehicle registered in a Member State other than the Member State in which the offence took place, cannot be sufficiently achieved by the Member States but can rather, by reason of the scale and effects of this Directive, 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 those objectives.

(43)The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 and delivered an opinion on 24 April 2023.

(44)Directive (EU) 2015/413 should therefore be amended accordingly,