New Regulation EC 1071/2009 - Access to the Occupation of Road Transport Operator, by Tim Ridyard, Solicitor, Woodfines LLP
New O-Licence Regulation: in force 4 December 2011
The rules on operator licensing for goods vehicles and passenger vehicles will change on 4 December 2011 when EC Regulation 1071/2009 comes into force.
A consultation document explaining this and also outlining possible UK relaxations for the benefit of the sector, was published on Monday, 4 April 2011. The consultation runs until Friday, 20 May. Every operator in the goods and passenger sector in the UK needs to be aware of the pending changes. However, it does not affect those outside the hire or reward sector ie holders of Restricted licences or passenger vehicles constructed and equipped to carry less than 9 persons (or 9-16 seat vehicles not used as part of a passenger transport business).
Some main areas where there will be change are as follows:-
Nominated Transport Managers:-
The mandatory requirement for operators to have nominated Transport Managers will remain but they will either have to be 'internal' Transport Managers genuinely linked to the operator (as a full/part-time employee/director or actual owner) or alternatively be 'external' Transport Managers contracted to the operator (with a contract specifying tasks to be performed) and not work for more than four operators with a combined maximum fleet of a maximum 50 vehicles (or possibly less in the UK as it is intended that Traffic Commissioners will be permitted to set lower parameters in appropriate cases.)
Nominated Transport Managers will have to be of good repute and be professionally competent.
Disciplinary action against Transport Managers:-
The new Regulation will in practice permit Traffic Commissioners to take direct action against Transport Managers - this will mean that Public Inquiries could in due course be convened for Transport Managers alone when Traffic Commissioners could declare them unfit to be in that role - if declared as unfit Transport Managers would also be disqualified from holding that role for an operator in any other Member State. The Regulation lists offences which will automatically lead to 'unfitness' being made out against a Transport Manager (and indeed an Operator), though there is provision not to make a finding of 'unfitness' in the circumstances of an individual case if it would be disproportionate.
Financial standing:-
Operators in both the goods and passenger will be well familiar with the less than straightforward issues surrounding 'financial standing'.
Whilst the basic rule concerning financial standing will remain as before, meaning that operators must continue to show that they have enough finance to support their vehicle ( 9000 Euros for the first vehicle and 5000 Euros for subsequent ones), there are changes concerning the proving of this fundamental limb of an operator's licence.
New licence applicants will have to satisfy new arrangements by either certified annual accounts or a certified opening bank balance or a financial guarantee (overdraft facility or credit facility or invoice finance agreement). This opens the door to bank guarantees being potentially available as a means of satisfying this criterion.
Existing operators will continue to have five yearly checks as before but any checks (e.g. on variation applications, non-compliance checks etc ) will adopt the new rules.
Certificates of professional competence/ 'grandfather's rights':-
With effect from 4 December 2011 holders of Standard National operator's licences will have to have a Transport Manager with either
- an international CPC, or
- a national CPC obtained before 4 December 2011, or
- an exemption through continuously having managed a transport undertaking for a period of ten years before 4 December 2009, or
- an existing recognised third party qualification
Existing operator's licences will remain valid and Standard National licences will continue to be issued.
In reality the national CPC examination will be abolished from 4 December 2011 and the new CPC examination will cover both National and International operations. National CPC holders who wish to carry out International work will be able to convert to the International CPC qualification simply by an additional qualification - they will not be required to re-sit subjects they have already qualified in.
The above is by no means an exhaustive list of the provisions of the new Regulation and is not a substitute for the taking of formal legal advice. The UK application of the Regulation will include, where lawfully possible, some relaxations to assist the sector and the consultation document itself can be found here: http://www.dft.gov.uk/consultations/open/2011-11/
For further information contact Tim Ridyard at Woodfines LLP Solicitors - Lockton House, Clarendon Rd, Cambridge CB2 8FH
Telephone 01223-411421
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